Please, please, please can someone take a look? I really need to know if the charges for the arrears on my statement are realistic for the arrears total, bearing in mind that the DJ at the last hearing (2 years ago) allowed Santander to charge interest on the arrears. Can they do that and if not, where is the legislation/directive preventing them.

I've just read on another thread that we need to put forward an offer of repayment and send it recorded, also disputing the charges. If I am reading the statement correctly, they are taking £50 odd per month in Interest on the arrears! I recall the DJ at the repo hearing 2 years ago allowing them the interest on the arrears, but are they allowed to do this and how would I defend against it? Jox

Can someone take alook please, as I really need to get the form in by Friday. I would be grateful if someone could post alink to a thread or the legislation regarding interest on Mortgage arrears. Thanks, Jox

Can someone take a look please - I'll sort out photobucket tomorrow. Thanks.

Got there in the end. They are taking about £100 a month for the arrears and only about £50 is coming off the total.

Sorry, having trouble with photobucket.

Evening all. We have received a warrant for repossession from Abbey/Santander, despite keeping up with our payments for the past two years since getting the repossession suspended. Our payments have been alittle erratic, but I believe we have done really well to make them under difficult circumstances (losing job, having kids etc.). We were informed that a Warrant would be issued back on 6th August, but only received the Eviction Notice from the Bailiff on Friday, 10th September. The eviction date is 29th September, giving us two weeks from tomorrow to sort it out. The amount to be paid towards the arrears at the previous hearing was £50, but acording to the statements, they have been charging us close to £100! Can someone take a look and confirm what the Debits and Credits columns mean in the Arrears section. Thanks. I have contacted Santander and requested all statements since the last hearing, but don't hold much hope given their track record! IMG]http://i444.photobucket.com/albums/qq161/easkey/Amex%20Appeal/scan0001.jpg[/img] Thanks again, Jox

Many thanks to you both. The money I would be contributing would be Maintanence, so should not affect the Income Support. Does anyone have any more information on the type of benefit she would receive regarding the Mortgage? My worry was that my name remaining on the Mortgage would affect her benefits. Joxer

Hello all, I have a question concerning moving out of a house that I have a Mortgage on with my wife. My wife left me about 4 months ago and moved in with her parents (largely due to financial problems), taking our two young children (2 and 6). We have financial issues and I was horrified when she told me that she was looking for a flat to rent, as I had tried to talk her into coming back to me, but if not, moving back into our house with me moving in with my mother. Our combined income and benefits could not stretch to paying for two properties (one is hard enough) and it makes more sense for her to move back and for me to move out, so the kids can be back home and the mortgage gets paid. Can anyone advise me as to how this works with benefits? I will be registered as living with my mother, but still have my name on the mortgage of our property. I can then give most of my wages over to my wife and kids and she can claim benefits as a single parent, keeping our own property and without the need for help with housing (apart from MIR). Hopefully this will be short term, if I can persuade her to let me return to the house. Thanks in advance, Joxer

Bumping again!

Bumping.

Good question OnMyWayOut. I am in the same situation regarding a Charging Order, where I wasn't going to challenge it, but now wish to. I have until Tuesday to object to the Land Registry, so need an answer very quickly and I'm certain they haven't informed my other creditors as they would have objected. Maybe inform the Land Registry/Court that you have sent an SAR and await the results before they make the CO final? I'll keep bumping this thread. Anybody?

Good stuff Citizen. that will be very useful and I can add it to my list of case law (as I have mentioned the lack of statements etc. in my Witness Statements). I did hit the red triangle, but appreciate that everyone is doing their best in their spare time and may be involved helping others at that time. Thanks again and I may need more help nearer the hearing.

I filed and served it today! Thanks anyway and any advice would still be much appreciated, pending the hearing in August. I did mention the lack of TN/missing statements and no the importance of the original cca though. Thanks.

Can someone take a look please?

Bumping again! Help!

Can anyone help - this has to be in by Thursday. Thanks.

Bumping.

Hello again, I am at the Witness Statement stage of this now, with a hearing set for August. I have prepared the Witness Statement (most of it), but am a little unsure of what to put regarding the following: 1. Admittance that they do not have the original, or the original T&C's. (have mentioneed it, but not really rammeed it home) 2. Admittance of no Termination Notice. 3. Missing statements. Here is what I have : 2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: - 3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. 4. The Defendant neither admits nor denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all. 5. The Particulars of Claim state action is being sought “being monies due from the Defendant to the Claimant under a regulated Credit Agreement between the Defendant and Barclays Bank PLC T/a Barclaycard” . 6. I do not admit that I entered into a credit agreement with the Claimant regulated by the Consumer Credit Act 1974. The claimant is put to strict proof that an agreement was made between the defendant and the claimant in the manner prescribed. 7. If, which is not admitted, the agreement is enforceable and a lawful assignment has taken place, I do not admit that I am indebted to the claimant in the sums claimed. I put the claimant to strict proof of all sums claimed. 8. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16 paragraph 7.3. 9. It is admitted that I made an application to Barclaycard. That Agreement was regulated under the terms of the Consumer Credit Act 1974. I make further submissions to the enforceability of that contract below but I put the claimant to strict proof that the said agreement is enforceable both as of the date of its inception and at all times thereafter. 10.The absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable. 10. It is noted that the claimant filed his witness evidence and other documentation on 28th April 2010, but has yet to supply ANY of this documentation to the defendant. 11. The defendant respectfully requests the amendment of this defence if such paperwork is presented to the court. 12. The Claimant’s claim to be entitled to £8446.70 or to any other sum, is denied. The Alleged Agreement supplied to the Defendant 1. It is denied that the copy of the agreement referred to in the particulars of claim and containing the defendant’s signature represents a regulated agreement under the terms of the Consumer Credit Act 1974 (“CCA”). 2. Under the Act there are certain conditions laid down by parliament which must be complied with if such a consumer credit agreement is properly executed and subject to enforcement by the courts 3. Firstly, the agreement must contain certain Prescribed Terms under regulations made by the Secretary of State under section 60(1) of the Consumer Credit Act 1974; the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 4. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)(“the Regulations”) 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-- 1. Number of repayments; 2. Amount of repayments; 3. Frequency and timing of repayments; 4. Dates of repayments; 5. 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 an observable point of fact that the alleged agreement referred to in the particulars of claim is deficient of the prescribed terms as is a requirement of schedule 6 of the Regulations and is therefore unenforceable under section 127 (3) of the CCA which states: 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). 5. This is clarified in case law from the Lords of Appeal in Ordinary (House of Lords), the highest court in the land, in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. 6. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document. 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: "33 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. It is respectfully requested that the court consider the precedent quoted above in making its judgement on the enforceability of the document the Claimant is reliant upon in bringing action. The Default Notice 1. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. 2. 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) 3. It is averred that the default notice referred to in the particulars of claim does not allow the prescribed timeframe of 14 days after service to remedy any breach referred to in said default notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given. 4. 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 amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Failure of a default notice to be accurate invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) 5. It is averred that the Default Notice has not supplied the name and address of the creditor/owner as specified in the Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) - Schedule 2 (2). 6. Without a valid default notice it could be inferred that the bringing about of a county court Judgement without first seeking remedy via a Default Notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA. Statement of Truth Any thoughts, I would be most grateful.

I have just received the post and the DCA have supplied statements since 2001, the first 3-4 years statements are missing and they admit to not having retained them. Their is a substancial balance outstanding at this stage, which I think cannot be accounted for. Personally, I think a DJ will (wrongly) accept this as proof that the addressee had spent thee money. Thoughts please?

Thanks to you both. I know what you are saying ScarletPimpernel, but I am trying to get as many things as possible and have been advised to ask for a strike out, due to an unfulfilled court order demanding statements. I have suffered the misfortune of bad DJ's before, so need to get as many points to argue over as possible and think that even if a DJ accepts a copy of an agreement with only the current T&C's (which they do), then argue that they cannot prove that I borrowed anything anyway. Rhodium, if they have a record on their system, surely they would print these and supply them after being ordered by the court.

I think you may have grasped the wrong end of the stick here Rhodium. This is regarding a credit card debt, where the statements have not been provided (actually I have two running - one where there have not been any provided and one where 5 years are missing) and only a copy of the CCA. My question was how can the OC chase the alleged debt without statements, as there can be no proof of the debt without them - or in the case of some years missing, how can they prove the total on the claim form?

Thanks supasnooper. I must say I'm surprised at this. I would have thought that a valid agreement, with an allegation from the creditor that you owe £xxxx amount would be toothless, without statements detailing how this amount was spent to back this up. Without statements, it is just their word that you have spent the money. Any allegations going through the courts should be subject to proof and without proof it remains an allegation. No?