I think that like in anything legal, its a mixed bag of results.

for example, we lost slater, we won Harrison, we won a PPI case recently having the agreement declared unenforceable and lost our first case this year on the same facts so i think it depends on the variables, such as court, judge, whether the judge is pro bank or anti bank etc

these are things that cannot be foreseen sadly.

maybe the opponents in the other cases didnt rely on the Barnes case either. Certainly in every case where the Court has been referred to this case in my experience the Court has refused a time order if the repayments would exceed the time frame of the agreement, for example if the agreement was 48 months and the Debtors proposal would make it become 60 months the Court has refused such an order

In the "Barnes" case the court said that

If,despite the giving of time, the debtor is unlikely to be able to resume payment of the total

indebtedness by at least the amount of the contractual instalments, no time order should be

made. In such circumstances it would be more equitable to allow the regulated agreement to

be enforced.

This is the difficulty i have faced. It has been the Creditors objections to the granting of the time order that have caused the problems due ot the case authorities i refer to

oh no i agree with you, but the view we have seen has been if there is a debt, which there most-likely will be, and the debtor has not been paying it which is the norm otherwise why would you get a default notice, then the Courts seem to , unless the debtor can give a time for remedying the breach which is inside the agreement repayment period, take a hard line and allow judgments instead

It seems very difficult to get a time order for someone who cannot afford to pay is all im saying.

yes, but the view also proffered by District Judge Sparrow for example is that the Creditor is also entitled to a judgment which he can then enforce through attachment of earnings or charging order

Todate we have not managed to get a time order due to the fact that most of our customers cannot afford to pay enough to achieve a time order

In Southern and District Finance plc v Barnes (1995) 27 HLR 691 the following principles were laid

down: (1) When a time order is applied for, or a possession order is sought in respect of

land to which a regulated agreement applies, the court must first consider whether it is just to

make a time order. That will involve consideration of all the circumstances of the case and of

the position of the creditor as well as of the debtor. (2) When a time order is made, it should

normally be made for a stipulated period on account of temporary financial difficulty. If,

despite the giving of time, the debtor is unlikely to be able to resume payment of the total

indebtedness by at least the amount of the contractual instalments, no time order should be

made. In such circumstances it would be more equitable to allow the regulated agreement to

be enforced. (3) When a time order is made relating to non-payment of money: (a) the ‘sum

owed’ means every sum which is due and owing under the agreement, but where possession

proceedings have been brought by the creditor that will normally comprise the total

indebtedness; and (b) the court must consider what instalments would be reasonable both as

to amount and timing, having regard to the debtor’s means. (4) The court may include in a

time order any amendment of the agreement, which it considers just to both parties, and

which is a consequence of the order. If the rate of interest is amended, it is relevant that

smaller instalments will result both in a liability to pay interest on accumulated arrears and,

on the other hand, in an extended period of repayment. But to some extent the high rate of

interest usually payable under regulated agreements already takes account of the risk that

difficulties in repayment may occur. The practice of amending agreements (including

amendment so that no further interest is payable) was approved by the House of Lords in

Director General of Fair Trading v First National Bank plc [2001] UKHL 52, [2002] 1 AC 481. (5) If a

time order is made when the sum owed is the whole outstanding balance due under the loan,

there will inevitably be consequences for the term of the loan or for the rate of interest or

both. (6) If justice requires the making of a time order, the court may suspend any possession

order that it also makes, so long as the terms of the time order are complied with.

 

 

 

That has always been the problem we face when applying for a time order, and that exceprt is from blackstones, and refers to the cases we have been referred to when the opponents have opposed a time order

why do you need to do the Defence this weekend?

I wouldnt rush things

In fact, id say given my experience with your opponents, and given the strength of your case, and given the extra time you have you should not try to rush through your defence.

It looks to me there are all manner of issues here, problems all over the place and not to mention that some of the terms produced arent compliant with the Unfair Terms in Consumer Contract Regulations 1999 and also some are an attempt to contract out of the CCA 1974 which automatically voids them per s173.

Hmmm, i see a difficulty here

Cabot havent actually pleaded correctly. They havent said there was an agreement, nor have they pleaded a Default notice or notice of sums in arrears

They havent even pleaded a breach of contract.

So

This is a headache for them if you make it such, but if you let them off the hook then you are doing yourself a disservice.

I wrote to them for a client a while ago, you may be able to adapt the letter to assist you

here goes

We have reviewed the particulars of the claim against our client and have reviewed your letter to our client dated 2011.

 

Our client’s position is that the particulars of claim lack the depth and detail to be considered adequate. It is noted that the Claim was issued through the County Court Bulk Centre, which has a character limit of 1024 characters. However the Bulk Centre rules clearly state that if the Claim cannot be particularised within this limit then it must be issued via the local court. Furthermore CPR 16 does not give a Claimant the right to avoid pleading his case adequately so that he can use the Bulk Centre to issue his claim.

 

Your Clients pleaded case is some 300 characters including spaces which leaves 700 characters at your clients disposal and which remain unutilised, this in itself shows the lack of care on your clients part. The Claim could have contained a far greater depth of information than what has been included unless it is the case that you do not know the facts of the case against our client. We would like to draw your attention to the case of Nomura International Plc v Granada Group Ltd & Ors 2 All ER (Comm) 878 where the Claimants claim was struck out for failing to plead adequately the nature of the claim or to set out adequately even in a rudimentary fashion the facts of the claim against the Defendant. We believe this case would be relevant to our clients’ application.

 

The pleaded claim is insufficient, there is no mention of a contract, nor is the mention of a breach of contract, what the breach was, what the degree of default was, whether or not a default notice was issued, whether or not the underlying contract was regulated by the Consumer Credit Act 1974 or whether the debt relates to an unregulated agreement. Also there is no details as to the assignment, date of assignment date of notice of assignments, all of which are extremely important to this matter and ought to be pleaded within your clients claim.

 

We note that your letter of the 28th March 2011 alludes to disclosure of documents occurring at the standard disclosure stage, however, we would point out that given the lack of detail within the pleaded case our client cannot plead a Defence. Furthermore, if our client were to file a Defence it would be nothing more than a bare denial of the Claim and would undoubtedly need amending once disclosure did occur. We consider placing our client in this position to be unreasonable and not in accordance with the overriding objective nor would it be in accordance with the requirements of CPR rule 16 given your client must know what it is its claim is based upon, and if based upon a written contract then it ought to be pleaded as such by mention of that document within the pleadings.

 

Therefore our instructions are to apply for an order compelling your client to replead its claim and to disclose documents mentioned within the amended pleadings within 14 days thereof. We shall exhibit your letter of the 2011 to support our client’s application. We shall also seek costs on the indemnity basis.

 

However, should you wish to avoid a contested application then we would be prepared to discuss terms on consent with costs in our clients favour.

 

If we do not hear from you by 4pm on the 2011 we will file our clients application without further notice.

 

 

One pointer, i wouldn't use abbreviations, CCA while you may understand what it refers to, the person the other end may not.

also im baffled by this

The claimant has not sought to obtain a copy of the CCA or full statement of account prior to making their claim, which I would assume to be a pre-requisite to proving and enforcing the claimant’s claim. I would therefore question the validity of the served default notice and notice of assignment as the claimant is obviously in default of not having supplied a copy of the CCA and full statement of account thatI may view.

I dont see how the validity of the Default notice can be questioned, if the Claimant hasnt complied with s78 CCA 1974 for example as it would be the s78 breach which precludes the enforcement.

If the Default notice is not compliant with the regulations then this gives a further limb to attack on, it is not however in place of the s78 breach but in addition to it.

If they cannot prove service of the notice of assignment then they may still rely on equity as their aid so that would not defeat their claim either

are you sure the default is ok?

most ones i see say " 23 days of the date of this notice" which is far from ok

Also Nationwide are very quick to avoid the OFT responsible lending guidance and litigate against people, so there may well be issues you can raise

no the OFT guidance is something the Court can consider

The Court has very wide powers under the Consumer Credit Act 1974, s140a give the court the power to consider "Anything" done by the creditor or its agents

the application for the Time order is here

http://www.hmcourts-service.gov.uk/courtfinder/forms/n440_0499.pdf

It is notoriously hard to obtain as the courts appear to construe the provisions of 129 CCA as very narrow.

Blackstones Civil Practice sets out the routes to obtaining a time order and the case law etc

I will post up what they say later

a bad notice cannot allow for enforcement, that is established

Litigation is about tactics. If you can manoeuvre your opponent into a position where he does not have the upper hand, where it is commercially non-viable to continue the claim, where he faces costs etc, then you will be able to bring him to the table in most cases and use this to negotiate.

A bad notice assists, why? well if the Claimant seeks to issue a new notice he has to amend his pleaded case!! costs follow the event so the Defendant is then entitled to the costs of amending his defence plus his LIP research costs etc. This can run to a couple of £k

So the Claimant may well be able to be manoeuvred into a position where he faces the OFT guidance on responsible lending, the prospects of costs etc and decides to accept a reduced offer of payment on a tomlin order

it has its advantages

However when you get to trial and the Claimant has not made good a bad notice, lest not forget some banks are arrogant and think their sh!t dont stink etc, so we have a trial then they ought to lose. This is the pattern it seems from the cases ive seen discussed with other fee earners

You can never have a one size fits all reply, this is the difficulty and i think that there are circumstances where you can defeat a claim with a bad notice and make it financially non viable for the claimant.

In respect of time orders

They are useful, but notoriously difficult to obtain

This is what one of the leading texts for practitioners says

One of the most important powers given to the court is to make a time order under CCA

1974, s. 129. By s. 129(2), a time order provides for one or both of the following, as the court

considers just:

(a) the payment by the debtor or hirer or any surety of any sum owed under a regulated

agreement or a security by such instalments, payable at such times, as the court, having

regard to the means of the debtor or hirer and any surety, considers reasonable; and/or

(b) the remedy by the debtor or hirer of any breach of a regulated agreement (other than the

non-payment of money) within such period as the court may specify.

By CCA 1974, s. 130(2), in the case of a hire-purchase or conditional sale agreement only,

a time order may deal with sums which, although not payable by the debtor at the time

the order is made, would if the agreement continued in force, become payable under it

subsequently. A time order is not restricted to giving the debtor or hirer time to discharge his

or her obligations under the agreement, but may also alter those obligations, including future

obligations. The power to alter the terms of the agreement is similar to CCA 1974, s. 136, see

95.64

 

The debtor or hirer can apply for a time order in the following situations:

(a) following service of a default notice under CCA 1974, s. 87, a calling-in notice under

s. 76 or a termination notice under s. 98;

(b) following issue of proceedings by the creditor to enforce a regulated agreement, security,

or to recover possession; and

© following an application by the creditor for an enforcement order.

An application for a time order is made using Form N440 (see PD 7B, para. 3.1(2)).

In Southern and District Finance plc v Barnes (1995) 27 HLR 691 the following principles were laid

down: (1) When a time order is applied for, or a possession order is sought in respect of

land to which a regulated agreement applies, the court must first consider whether it is just to

make a time order. That will involve consideration of all the circumstances of the case and of

the position of the creditor as well as of the debtor. (2) When a time order is made, it should

normally be made for a stipulated period on account of temporary financial difficulty. If,

despite the giving of time, the debtor is unlikely to be able to resume payment of the total

indebtedness by at least the amount of the contractual instalments, no time order should be

made. In such circumstances it would be more equitable to allow the regulated agreement to

be enforced. (3) When a time order is made relating to non-payment of money: (a) the ‘sum

owed’ means every sum which is due and owing under the agreement, but where possession

proceedings have been brought by the creditor that will normally comprise the total

indebtedness; and (b) the court must consider what instalments would be reasonable both as

to amount and timing, having regard to the debtor’s means. (4) The court may include in a

time order any amendment of the agreement, which it considers just to both parties, and

which is a consequence of the order. If the rate of interest is amended, it is relevant that

smaller instalments will result both in a liability to pay interest on accumulated arrears and,

on the other hand, in an extended period of repayment. But to some extent the high rate of

interest usually payable under regulated agreements already takes account of the risk that

difficulties in repayment may occur. The practice of amending agreements (including

amendment so that no further interest is payable) was approved by the House of Lords in

Director General of Fair Trading v First National Bank plc [2001] UKHL 52, [2002] 1 AC 481. (5) If atime order is made when the sum owed is the whole outstanding balance due under the loan,

there will inevitably be consequences for the term of the loan or for the rate of interest or

both. (6) If justice requires the making of a time order, the court may suspend any possession

order that it also makes, so long as the terms of the time order are complied with.

 

The problem that I see with using default notices, or even lack of them, to fight a court claim is that it's such an easy thing for them to correct. They can just send one and carry on from there so in my view there is little point in using this argument, especially if the court adjourn to allow them time to do this..

 

The only thing is, if it can be proved that they really didn't send one, which may be possible if you have impeccable records of all other correspondence and literature, is that they haven't followed the necessary steps to take you to court in the first place so you may avoid costs.

 

I wonder if a time order might be an option for you. http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=06_time_orders

EDIT

Caro can i direct you to

KEith Harrison vs Link Financial Limited

Lloyds TSB bank Plc vs Simpson

Then please tell me the default notice argument is pointless. The first case is a High Court judgment so is binding upon the lower courts

It is also not, contrary to suggestions, easy to put right such a failing as a bad notice, it is more complicated than that.

sorry maybe not making my point clear, it is often the case that i dont frame my point well enough on these boards,

what i was saying was, if the claimant accepts his notice is bad, then reissues a new notice, then the debtor remedies the breach by payment of the arrears, the Claimants cause of action becomes extinguished as there is no longer an actionable breach (s89 ). The Claimant would have to discontinue and then pay the Defendants costs, as he could no longer sue for the full balance

This is the point which was of concern to the DJ

Also the Judge interpreted Harrison at the final hearing to mean no enforcement because he found the notice was bad, he even refused the recovery of the arrears.

can you post the agreement so that we can see if it is indeed a fixed sum loan

If it is then the car is indeed yours to do with as you wish and any hpi marker ought to be removed forthwith

We are just about to file a defence which raises these issues, i do honestly expect the opponents will discontinue and come to a payment arrangement which is what they ought to have done, as they are in breach of 78,86a-d and 87 CCA in any event.

will let you know what happens

HI

 

Interesting do we have any judjements we can see that illustrate this. We do have a few on here where cases have just been statyed or DNs or just represented during proceedings.

One here where it seems the court considered it to be an irrelevence

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?213405-Hillesden-Securities-Ltd-(dlc)/page13

 

Peter

Yeah that was before Harrison was handed down though Peter that case, however, i do not think that the same would happen if the OP had placed reliance on it

I find it helpful for people who have been trying to service their debts but the lender has refused all offers to pay.

Nationwide are one such lender who despite offers of over half the contractual payment when customers are in difficulty and prove their financial circumstances do not allow for the full payments, still choose to litigate without a second thought.

It is lenders like that who will get caught in the guidance. I dont expect the courts will ever write off the debt, but the Court does have the power to reset the installments to a manageable level, the Bentley case shows this http://news.bbc.co.uk/1/hi/business/8332124.stm The courts are more willing to give a remedy which is balanced and fair as opposed to writing off in total

we are awaiting the transcription of the judgments

a very powerful and persuasive document has been released by the OFT recently http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1107.pdf it is something which i understand has been relied upon by people in litigation to assist in showing an unfair relationship under s140a CCA 1974

The part in question is section 7 from page 65 onwards,

To reaffirm my previous post

The Op ought to seek disclosure of the template which the Bank uses. This can be done by request using part 18 for further information, i did a thread on CPR 18 but do not have the link to that thread any longer.

Alternatively the OP could make an application for disclosure of the template.This would incurr costs if unsuccessful, but it is a balance that needs to be considered, on the one hand having at-least the template to scrutinise or on the other having nothing at all.

or at a CMC the court could be invited to make an order for disclosure of the template

If the Claimants case gets to trial and the notice is bad then there is a fair chance they will lose with adverse costs. Harrison vs Link has been taken in a number of cases to be the authority for the proposition that a "bad" notice cannot lead to any enforcement and accordingly the Claim should be dismissed.

This has happened in a number of claims recently as opposed to staying the proceedings, as one judge commented that it would prove impossible if the Debtor remedied the breach for a claim to go anywhere as the Claimants cause of action would be extinguished by the reissue of the new notice, furthermore the new notice would be a new cause of action in essence so would leave the pleaded case needing amending with costs to be paid to the Defendant if the Claimant sought to amend.

It seems the judiciary are dismissing claims where the notice is bad and making the creditors apply for leave to reissue

But they cannot, just slap a default on your credit file willy nilly

People rely on McGuffick as the authority that they can, but you need to read what Flaux J said, he stressed that his judgment that his judgment dealt only with enforcement under breaches of s78(1)

Lord Hoffman in the House of Lords case of Dimond v Lovell said that

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.

The court in this case declared the rights of the parties, and held the agreement to be unenforceable, the Defendants do not have to pay any further sums, the Claimants claim fails.

So i dont see how you can sell the debt back to the OC and then circumvent the Judgment of a competent court, the correct route for this company would be appeal out of time to reverse the order of the court yet it has not taken that route and instead harrasses the client threatening legal action it cannot take and demanding monies the sums of which are NOT oweing!!!! cut the cake any way you want, what is claimed IS NOT owed

Hi

 

Purely as an inquiry because bassically i dont know. If a soicitor prepares an injunction against someone, who has to pay the solicitors costs. Is it he person who the action is being taken against or the person who the injunction is defending.

 

Peter

The basic indemnity principle means that the loser pays the winners costs.

If the Court grants the injunction, then the Claimants costs should be borne by the Defendant as if the Defendant had not conducted themselves in such a manner the action would not have been needed in the first place.