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mevsthem

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Posts posted by mevsthem

  1. Hi Dotty,

     

    They did send a threat-o-gram before I received the SD but I just filed it with the rest of the junk mail I've had. Basically until I received the SD I ignored them as I just thought they were empty threats. But they do go through with them. You can try to stop them at this stage but I don't know the kind of response you will receive. If you have a valid dispute with the OC then its very doubtful they will attend the set aside anyway. Until you actually receive the SD I would not loose too much sleep about it.

    Regards

     

    P.s In my opinion I would not say you do not acknowledge because you are stating the account has a valid dispute which needs to be dealt with and cannot be without proper t&c's. Ie You are not disputing you owe the money, you need to know what you had signed up for.

     

    If you can please post up a brief story about whats happened with the account so far

  2. Hi Dotty, Just dropping in to sub to your thread. Did you place the account in dispute with the O.C ? If you did then this should have been passed on when they sold the account to the DCA. More than likely they will not have been notified of the dispute. It may be worth a try with connaught and see what there reply is, but in my opinion they will try their luck hoping you cave in. This is an abuse of process so stick to your guns and they should back off eventually. But please do take their threats seriously as they do go through with them. If they scare 6 out of every 10 people with these tactics they are onto a winner. Stick with it and please ask if theres anything I can help with

  3. Hi Rupert, Have you checked the account numbers on the application form to see if its the same as when you defaulted ?. If its different you may be able to argue that the application is for a different account. Not 100% sure if it will help but maybe could be added to your defence. Mine changed from a visa to a mastercard with a new acc number and without me signing an agreement for it. the only application form they sent me was for the old acc. Like I said, don't know if it will help just trying to think of arguments you may have.

  4. Hi, Just a quick update to this. Court date was set for today, rang the courts this morning and they said that the hearing was still listed so I decided to attend. I booked in with the lady at reception and I was not on her list. She went to ask the judge and the hearing was vacated. I will also receive confirmation in the post, so now I feel a lot better about it. Thanks to all and especially 42man and The Mould for all the helpful advice. If I can help anyone in any way please feel free to ask. Thanks again

  5. Hi, Many thanks for the reply. For the bike one I only have the original agreement but it shows a one off gap payment of £114 and ppi payments of around £5 per month. From what I remember the agreement was paid for about 18 months, then I paid the remainder off.

     

    With the Mortgage, It ran for just over 3 years and on the letters I have it says monthly insurance premiuim of £17. I thought this may have been buildings insurance but I think that was added to the mortgage on a yearly basis ( I have a yearly statement with it on ). But like I said, I dont know whether its worth upsetting the apple cart so to speak

  6. Hi, dug out some old agreements and found a motorbike I bought in 2001 with a credit company called close consumer finance ltd has ppi insurance and also GAP insurance added that I was unaware I had or needed. How would I go about trying to claim these back ?

     

    Also looking at my old mortgage with the halifax, it states monthly insurance premium. Would this possibly PPI ?

    Is it worth ringing the halifax to see as I also have had old loans with them too that I have no idea of acc numbers, I do have for mortgage.

    I also have a cc account in dispute with haliprats, do you think if I had any ppi they would put it on the disputed cc. I dont want this to happen as its been an ongoing thing since 2009 and I dont want it to restart my 6yr wait on credit file because they have made a payment towards it.

    Thanks in advance for any help received

    Regards

  7. Hi received a date from court for the beginning of march but it states " The hearing is for directions only if the matter is disputed ". What does this mean.

    Also looking through my Dsar I have a few things ive noted and wondered if they are beneficial.

    1. The acc says charged off end of feb 2010 and passed to moorcroft. I have checked the letters they have sent and I seem to have an extra letter than whats stated on dsar.

    2. Previous to this I have various letters from Albion from Nov 09, before charge off and no mention on dsar. Should it be in my dsar ?

    3. Also there are payments on statements after termination not made by me, can I find out where these have come from ?

     

    checked on amount of interest Ive paid on acc, can't believe they have had 7.5k off me while account was open. If I had not paid all this money I could have paid them off and had a good holiday too !

  8. Well been to cc when I eventually found it, it's at the other side of town to the address on sd. Got there first time to find they wanted 3 copies of everything, so had to go copy another set. Returned to hand them in and they were very helpful. The lady went to check with the person that deals with sd's and returned and said everything was in order, I was within the time scale and I would receive a hearing date by first class post. Also they said that there is no need to swear the witness statement in anymore, as I've signed it that's fine.

    Next question is what happens next, do I have to prepare anything ?

    Kind regards

    Me

  9. Would this sound ok, as I now feel like i'm talking in a different language

     

     

    DEFAULT NOTICE

     

    On the 08/10/ xx A default notice was issued by the creditor which gave until the 29/10/xx to pay arrears owing on the account of £xxxx ( attached document 10).

    On the 21/10/xx A termination notice was issued by the creditor ( attached document 11), terminating the account without giving such time to remedy the account.

    Therefore the creditor repudiated the contract and terminated in contravention of statutory requirements imposed under s.87(1) CCA 1974 (as amended)

     

     

     

    Default notices

    87 Need for default notice.

     

    (1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

     

    (a)to terminate the agreement, or

     

    (b)to demand earlier payment of any sum, or

     

    ©to recover possession of any goods or land, or

     

    (d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

     

    (e)to enforce any security.

     

    (2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective. Contents and effect of default notice.

     

    (1)The default notice must be in the prescribed form and specify—

     

    (a)the nature of the alleged breach;

     

    (b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

     

    ©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

     

    (2)A date specified under subsection (1) must not be less than [14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [14] days have elapsed.

     

    (3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

     

    (4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].

     

    [F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

     

    (5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

    Invalid statutory notices served

    It is averred that a creditor’s failure to serve a valid statutory default notice invalidates his entitlement granted under s.87 of the Consumer Credit Act 1974 (as amended) (“the Act”) to demand earlier payment of any sum or to recover possession of any goods or land, but that the service of such an invalid statutory notice does not invalidate the creditor’s action of terminating any credit agreement in reliance upon the same, in this regard; I assert that this action brought by the creditor is bad in law and an abuse of process and ought to be dismissed without further notice.

     

    s.87(1) of the Act clearly states the legislation applicable in respect of statutory provisions imposed upon creditors relating to the ‘necessary’ service of a default notice, in such cases where the creditor fails to comply with said obligation, the needs of the debtor, protection granted by the statute, far outweigh any needs of the creditor, who, in his said failings, has displaced his ordinary entitlement, that is, his ordinary entitlement to demand full payment of any sums, take recovery action of any goods or land and or enforce the credit agreement pursuant to s.87(1)(a)(b)©(d)(e) of the Act.

     

    Failure, by any reason of the creditor, to comply with the said statutory requirements imposed, by way of service of an invalid statutory notice, will not and cannot possibly extinguish his termination and repudiation of the credit agreement nor shall such failure extinguish his demand(s) for earlier payment of any sum or any action taken by him to recover goods or land, the displacement of his ordinary entitlement remains out of reach to him. Without the service of a valid said statutory notice, there can be no action taken by the creditor against the Claimant/Respondent and Judgment cannot be sought and awarded to the creditor for the full sum claimed by him or for the recovery of any goods or land in contravention of the said statute.

    I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

    In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

     

    The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

     

    Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

    This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

     

    Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future

  10. Do you think this would be ok to add regards default, I think it sums it up about not giving 14 days notice and gives the time scales service of documents. It needs a few bits ammending ie dates etc

     

     

     

     

    5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document 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).

     

    6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

     

    7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

     

    8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

     

    Section 87. Need for Default Notice

     

    (1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

     

    (a) to terminate the Agreement, or

     

    (b) to demand earlier payment of any sum, or

     

    © to recover possession of any goods or land, or

     

    (d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

     

    (e) to enforce any security.

     

    9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

     

    Section 88. Contents and effect of Default Notice

     

    (1) The Default Notice must be in the prescribed form…

     

    10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

     

    11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

    12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

     

    13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

     

    14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

     

    15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

     

    16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

  11. Right here goes, please delete post if you think it is not advisable to leave it open on the forum

     

     

    I xxxxx oath and state the following

    That in xx/xx/xx I was informed of upcoming redundancies at work which would make drastic changes as to my financial state. Immediately I contacted my creditors ( Halifax Plc ) informing them that my finances were possibly about to be affected and asked If I could possibly make a payment reduction or maybe freeze interest for a set period of time to help. The reply from the creditors was that they could not help and I could lose my home if I do not keep up with the repayments on the credit card.

    In xx/xx/xx I received ( attached document 1) stating that a substantial increase in interest rates from 17.9% to 27.95% was to be applied to the account from xx/xx/xx. It was my belief the agreement signed was for 17.9% for the life of the card.

    That on the xx/xx/xx (attached document 2) after being informed of the substantial increase in the interest rates on the alleged account, A formal request was made under sections 77-79 of the consumer credit act 1974 for a true copy of the signed, executed agreement to see exactly what it was I had actually signed for.

    That on the xx/xx/xx I received ( attached document 3 ) from the creditor with reconstructed terms and conditions enclosed stating a different interest rate of 23.53% and 29.95% . No copy of the executed agreement was supplied.

    That on the xx/xx/xx ( attached document 4) was sent to Halifax Plc placing the account in dispute until such a time that a valid executed agreement containing all of the prescribed terms was received.

    In reply, on the xx/xx/xx ( attached document 5) was received containing an application form which does not form a consumer credit agreement, containing all the prescribed terms. Showing no evidence of the interest rate to which I agreed to, which formed the basis of my original dispute.

    That on the xx/xx/xx ( attached document 6) was sent to Halifax stating that the agreement does not conform to sections 60(1) and 61(1) of the consumer credit act 1974 and would therefore only be enforceable by a court under s65. However the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3)

    In return on the xx/xx/xx ( attached document 7) was received, which was the same document as received xx/xx/xx (attached document 5) and for some reason dated ( even before my cca request).

    That on the xx/xx/xx ( attached document 8) was sent to Halifax Plc stating the account was still in dispute and to please make all further correspondence in writing only due to the amount of phone calls I was receiving which I deemed personally harassing. To which in reply (attached document 9) was received containing the same application form as attached document 7 and 5 still with no reference to all the prescribed terms or rates of interest.

    THE IMPORTANCE OF THE CREDIT AGREEMENT

    SECTION 78 (1) CONSUMER CREDIT ACT 1974

     

    (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

     

    (a) the state of the account, and

     

    (b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

     

    © the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

     

    The Consumer Credit Act in section 78(6) States that

     

    (6) If the creditor under an agreement fails to comply with subsection (1)—

     

    (a) he is not entitled, while the default continues, to enforce the agreement;

     

    It must also be noted that the agreement must contain the prescribed terms.

     

    Consumer Credit Act

     

    8.2 What if prescribed terms are missing or incorrect?

     

    s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

     

    If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

     

    (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

     

    The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

    Citation

    1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

    Interpretation

    2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

    Commencement

    3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

    (2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

    Transitional Provisions

    4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

    5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

    a)

    sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

    (b)

    section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

    ©

    section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

    in relation to agreements made before 6 April 2007)

     

    REFERENCE TO CASE LAW

     

    As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

    
‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

     

    SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

     

    THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

     

    The law states that without a prescribed agreement the courts may not enforce under 127(3) and

     

    1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

     

    “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.”

     

    2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

     

    “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

     

    I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

    ” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

     

    If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

    3. PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

    A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

    HELD: Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6).

     

     

     

    DEFAULT NOTICE

    On the xx/xx/xx A default notice was issued by the creditor which gave until the 29/10/2009 to pay arrears owing on the account of £xxxx ( attached document 10).

    On the xx/xx/xx a termination notice was issued by the creditor ( attached document 11), terminating the account without giving such time to remedy the account.

    Therefore the creditor repudiated the contract and terminated in contravention of statutory requirements imposed under s.87(1) CCA 1974 (as amended)

    It is averred that the alleged creditor has not served a valid statutory default notice pursuant to s.87(1) of the Consumer Credit Act 1974 (as amended), therefore, he holds no entitlement granted therein to seek to enforce the agreement and it follows that he has no standing before the court in respect of the same.

     

     

     

    Default notices

    87 Need for default notice.

     

    (1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

     

    (a)to terminate the agreement, or

     

    (b)to demand earlier payment of any sum, or

     

    ©to recover possession of any goods or land, or

     

    (d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

     

    (e)to enforce any security.

     

    (2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective. Contents and effect of default notice.

     

    (1)The default notice must be in the prescribed form and specify—

     

    (a)the nature of the alleged breach;

     

    (b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

     

    ©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

     

    (2)A date specified under subsection (1) must not be less than [14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [14] days have elapsed.

     

    (3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

     

    (4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].

     

    [F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

     

    (5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

     

    I would like to bring to the courts attention (attached document 12) sent on the xx/xx/xx clearly stating that the account is still in dispute even after the creditor repudiated the contract, asking for the opening of an official complaints procedure within 14 days to try and resolve the dispute. No reply was received.

    Attached documents ( 13 – 15) had to be sent to various debt collection agencies clearly stating my concerns and dispute due to the amount of letters and phone calls I received, which I deemed harrasaing.

    Upon receipt of the Statutory Demand “Exhibit A” contact was made with 1st credit ( attached document 16 ) clearly stating my dispute and requesting the stated information they hold regarding the account.

    In return on the xx/xx/xx ( attached document 17 ) was provided stating that Halifax Plc have no details of any outstanding dispute in relation to this account. It is also noted that I have not received a true copy of the executed agreement as requested. The copies of statements received from Connaught/1st credit are also disputed as ( attached documents 18 ) show payments being made to the account. I would therefore request information as to where these payments have come from as no payments have been made in respect of the unenforceable, unlawfully terminated account since xx/xx/xx.

    All copies of the original documents will be presented to the court including proof of postage on the day of the hearing.

     

    It is my belief that the creditor has issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT debt collection Guidelines imposed on 1st credit 2009.

    On the above information and the fact that there is a clear dispute I believe this is a blatant abuse of process and in light of this I request that the demand is set aside and I kindly ask the judge to award my costs in this matter as a LITIGANT IN PERSON.

     

    As a low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

     

    I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

     

    In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

     

    Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

     

    In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

     

    27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

     

     

    On the first page of statement I have put the following

     

     

    1. That on xx/xx/xx

    the statutory demand exhibited hereto and marked “A” came into my hands.

     

    2. The defendant totally disputes the debt.

     

    3. The alleged creditor has provided no enforceable consumer credit agreement that contains the prescribed terms.

     

    4. The alleged original creditor has not provided any valid notices of assignment.

     

    5. The claimant has provided no evidence of any PPI which may have been applied.

     

    6. The alleged creditor has failed to serve with the statutory demand a copy of the alleged agreement, statement of account, default notice and termination notice for this alleged account.

     

    7. The amount of the debt is disputed due to unexplained charges and payments which may have occurred whilst the account is in dispute

     

     

    If anyone could possibly advise I would really appreciate it as im not very good at speaking in law terms. This may be able to be diluted into a couple of paragraphs, I dont know

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