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gubbins1

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  1. Hi Slick, no CCJ against me , they just went straight to repossesion. Seems they were determined to get my house . Their solicitor even said as much outside the courtroom before we went in. He said that there would be no terms for repayments , just full repossesion. Luckily , the judge thought different.
  2. Thanks for the replies slick and ims. The business loan was secured with me as principal debtor. After contacting the court , it seems that there was no judgement as such , just a suspension of possesion order .It looks like I don't have much of a chance to get Barclays to set a decent sum for settlement. I'll have to wait to see what figure they come up with . Thanks again.
  3. Hello . I have had some great advice in the past from members at CAG , and wonder if anyone can help with my latest problem. I took out a £30,000 secured business loan from Barclays when I set up my company in 2005. Long story short , the company was wound up and Barclays took me to court for the outstanding balance on the loan , which after all the interest had been added was £25,000 odd. Barclays did all they could to get possesion of my house , but the Judge ruled that I should be allowed to repay the debt at £400 per month. I have met all the payments since , and after selling at last a machine from my ex company , I am in a position to make Barclays an offer of settlement. After contacting Barclays , it seems that interest has still been accruing after the court ruling and all the payments I have made since have only been servicing the interest and not paying anything towards the principal. In a previous court visit for a seperate business loan with Yorkshire bank , the Judge also ruled that I could pay £ 400 per month to cover the debt . In this instance though , the interest was frozen and I have just been paying down the debt from a figure frozen at the date of the Court case. My question is , should the figure quoted in my court case with Barclays have been frozen , or are Barclays able to keep the interest meter ticking ? Thanks in advance, Paul.
  4. Thanks for the advice. I will do a bit of swotting.Hopefully I will be able to bluff my way through.
  5. Don't really understand a lot to be honest. I just hope they don't ask too many questions . Thanks for all of your help guys.
  6. Hello docman , CCM . I've had a rewrite. Maybe you could have a read through if you have the time . Again, any suggestions greatfully received. In the Kingston upon thames County Court Claim number xxxxxx Between Bank of Scotland (Texaco Global)- Claimant and Mr XXXXXXXX – Defendant I would like the court to accept this amended defence as a replacement for my defence supplied to the court on 9th January 2009. Defence I am XXXXXXXX XXXX, and I am the Defendant in this matter. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants amended Particulars of Claim and put the claimant to strict proof thereof. 1 : If , which is not admitted the document attached to the claimants Particulars of Claim (Exhibit A) is a credit agreement , it is submitted that any such agreement is subject to the provisions of the Consumer Credit Act 1974. 2 : That the document attached to the claimants Particulars of Claim (Exhibit A) , does not constitute a valid credit agreement and is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 3 : Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts 4 : Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below 5 : The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following— a. Number of repayments; b. Amount of repayments; c. Frequency and timing of repayments; d. Dates of repayments; e. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 6 : It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974 7 : I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said: “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1." 8 : If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order 9 : Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26 "In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;" I would also like to add the words of Hoffman LJ from a case in the House of Lords , where he stated “The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law. " Dimond v. Lovell [2000] UKHL 27 10 :S 87 CCA 1974 clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement. Furthermore s 88 CCA 1974 requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). It is denied that any Default Notice in the prescribed format was ever received frrom the Claimants. The Defendant puts the Claimant to strict proof that any default notice said document in the prescribed format was delivered to the defendant." 11: The claimant claims interest pursuant to section 69 County Courts Act 1984 it is averred that this is not permissible as stated in (interest on judgement debts)Order 1991(No.1184(L, 12) section 2(3). this being a regulated agreement regulated under the Consumer Credit Act 1974 I respectfully request that the court consider ordering this agreement unenforceable pursuant to Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Statement of truth I , XXXXXXXX XXXX , believe the above statement to be true and factual Signed……………………………………………. Date 11th February 2009
  7. Thanks docman. Are you saying that a lot of the first draft of my defence needs to be removed, or just add the bits you have included above ? With regard to the default notice, I don't seem to have received one. I had a formal notice which I have copied below. Not sure it is of any use. Formal Notice Your Account is in arrears You must now make an immediate payment to avoid further action Being taken. As a consequence , you must now return any cards relating to this account that you have in your possession immediately.Your credit facilities have been withdrawn .DO NOT ATTEMPT TO USE THE CARD AS IT WILL BE RJECTED. Please not that whilst your account remains in breach of the terms and conditions , default information will be registered with credit reference agencies. This could affect your ability to get credit in the future. Theinformation supplied reflects the actual payment history in comparison to the terms and conditions of your agreement. It is in your own interest to deal with this now. Ring us immediately on the telephone number above.to discuss an acceptable solution or to make a switch or delta payment. I'll start editing the defence with your suggestions.
  8. Right , i will find it and try to get my scanner working. It's a bit tempremental.
  9. OK, that'll take some finding. Need to pop out now , but will get on it first thing. What sort of info do i need off of it ?
  10. I have the default notices from the debt collectors Wescot.I probably have some from HBOS , but i would need to search for them. Which do i need ?
  11. Hello CCM , I get the part about the S69 interest charges , but you have lost me a bit with the deeds and notices.
  12. Docman or CCM (or anyone else) . If you can find the time , I would appreciate an expert eye cast over my defence . Any suggestions for changes or additions would be welcomed. In the XXXXXXXXX County Court Claim number XXX Between XXXXXXXXXXXX- Claimant and Mr XXXXXX – Defendant I would like the court to accept this amended defence as a replacement for my defence supplied to the court on 9th January 2009. Defence I ,XXXXXXX , am the defendant in this claim and make the following statement as my defence to the claim made by XXXXXXXXXXX. 1 : That the document attached to the claimants Particulars of Claim (Exhibit A) , does not constitute a valid credit agreement and is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 2 : Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts 3 : Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below 4 : The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following— a. Number of repayments; b. Amount of repayments; c. Frequency and timing of repayments; d. Dates of repayments; e. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 5 : It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974 6 : I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said: “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1." 7 : If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order I respectfully request that the court consider ordering this agreement unenforceable pursuant to Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Statement of truth I , XXXXXXXXX , believe the above statement to be true and factual Signed……………………………………………. Date 11th February 2009 Thanks yet again. Gubbins.
  13. Thanks CCM. I will work on preparing my defence over the next couple of days. I've got a day in court tomorrow for a reposession claim on my house. I'll get that out of the way , then maybe I will be able to concentrate a bit better on this claim.
  14. No , no prescribed terms.Only reference to terms is a section that says ' under the terms of this agreement as set out overleaf ' . Unfortunately they did not copy the overleaf.
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