NR/Wallers Claimform - £29k Pers Loan *DISCONTINUED*

[womble72]

Hi Nick,

 

I have never recieved anything in writing about stopping the interest.

 

Worst case scenario is i owe them £24,892 and not £28,900 they are asking for.

 

Womble

[Curlyben]

Womble, for everyone can you please confirm the dates please.

Need,

 

Date of service

Acknowledgement of service

Defence deadline.

 

Just need to be crystal clear on dates here.

[womble72]

Hi Ben,

 

The date which the paper work sent to me was on the 9th November.

 

The Aos was sent on the 13th November (recorded delivery)

 

The defence deadline is 8th December.

 

Kind Regards

 

Womble

[pt2537]

Hi Womble,

 

Thanks for that, we just wanted to confirm the time frames we have to work with,

 

just to re assure you,we are working on things behind the scenes to try to find the best possible defence and out come for you on this so if things do go a little quiet on the thread dont worry

 

 

regards

paul

[womble72]

Thank you for all your help Paul.

 

Womble

[sequenci]

i didn't get chance to look last night, my laptop is playing up AAAAAAAAAAAAAAAAAAAAAAAAAAAARRGHHH.

[pt2537]

sequenci

 

can you view the images if i send them to u in a jpeg format to your email addy that i have?

[CHRIS581]

Watching with interest - Nr doing the same to me, (and probably a lot more people), out of the blue want to secure an unsecured amount. Must be some way of digging themselves out of their own mess.

 

Must send that AOS.

And them the CPR - should get them thinking....

 

Fingers crossed for you womble.

[womble72]

Hi CHRIS581,

 

So Nr are taking you to court as well.

 

I am hoping that the court's wont agree with Nr.

 

It is a unsecured loan and thats how it should be.

 

Thanks for your support

 

Womble

[AndyOrch]

The reality is however, if you are not making normal payments to an account be it P/loan or C/Card, at some point in time, a Court claim will be filed. These Companies as everyone knows, play rough, so why anyone would assume that they will be allowed to continue making nominal payments forever and a day, with the Bank's blessing, when and if they know you own a property (as in your case) is beyond me. More and more people are getting into difficulties with loans and credit cards, so the worse the situation gets, the more aggressive the banks and credit card Companies will become in enforcing debts. Nr is probably savvier than most and you only have to look at the detail in their P.O.C, hence the need to file via Gateshead N1 rather than M.C.O.L

With regards to a personal unsecured loan it’s not unusual for these companies to apply the full amount of interest from the drawdown after breach to the default. Any rebate would have been reflected in your Formal Demand. Giving you the option of early settlement or rectify the breach. Companies feel they have the right to include the full term of interest encompassed by the agreement when litigation is commenced Whether it is questionable/arguable I have no doubt Tomterm/ Sequenci will expand on this. You must refer to the terms and conditions of your agreement, which as I have said previously NR, are very litigious and would have no doubt, reserved the right to argue this vis a vis the agreement.

Unfortunately due to recent climate and the credit crunch also taking into account NR,s current predicament, latest trends of turning non secured into secured loans via a charging order on ones property, will become the norm with monies of this valu

As far as I'm concerned, if you know how to deal with these situations to achieve the best possible outcome from day one, you stand a much better chance of getting rid of or stabilizing debts to an affordable amount and moving on with your life. This has to be preferable to finding yourself living with the constant uncertainty regarding what the creditor might do next, and unable to plan for any sort of future for you and your family]With the help of the team on CAG and reinforcing Curlys comments to achieve an amicable outcome with NR I no doubt trust that everything possible will be scrutinized with an endeavour to finalize the best outcome with your defence. Yes there is the inclusion of the Invalid Default note and also contention of penalty charges be it £30.00 or £300.00, where you are challenging the legality of a Default Notice due to penalty charges being included in the amount that was claimed, said Notice therefore being legally unenforceable and would also be grounds for securing a stay, as it comes back to the legality or otherwise of penalty charges, which has yet to be established, which in turn could provide you with valuable breathing space in your case. With view to the Agreement I personally feel that its enforceable but does not stop you implying it is not with intent to argue its validity. Proof rests with the claimant.[/font]

As I have stated before, Litigation involves mind games and serves no purpose in giving your opponents the heads up]Fighting back takes courage, but it's a lot easier than you might think. If some people have opted to write to creditors and challenge what they're doing, this shows a determination to fight. A Court claim is no different, When ever you are questioning/challenging someone else's point of view, you are making an argument, so there's nothing to stop you doing this in front of a Judge, if you have to. Securing the best outcome and stopping them from gaining Summery Judgement, which lets face it is what they are out to achieve, to get their first foot on the ladder to gaining said Charging Order. If you had not intended to defend you would have allowed the above to be much more easily attainable

Good luck with your case and keep your chin up

 

 

 

 

regards

Andy

[womble72]

Hi Andy,

 

Thank you for your response.

 

The outcome i need from all this is that the judge will adknowledge that i cant pay the loan at this moment in time but for them just to agree that i can carry on with the payments through Payplan or if the case through the courts.

The only defence Andy is that they gave me an unsecured loan at the time and thats how it should stand.

What about the procedure with a charging order because one of the reply,s said you need to default on the ccj before that could be enforced.

 

If this is not the case where they can bypass the ccj then i will be in trouble.

 

Kind Regards

 

Womble

[pt2537]

Hi Womble,

 

as per my post 209, things are happening, discussions are taking place behind the scenes to present a cogent reasoned defense to this. there are clear issues with the presentation of NRs case

 

Sit tight,

 

Regards

paul

[womble72]

Thank you Paul.

 

Womble

[tomterm8]

Hi, womble, this is the first draft of what I've written so far.

 

I haven't been able to discuss this with the other site helpers etc yet, so DON'T do anything silly like submitting it. What I want to do is put it up so that people can check through it , for accuracy etc.

 

(Edit: these long posts always seem to make the fonts all go wonky. Should be one font throughout )

 

DEFENCE

 

1. I deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

 

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. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the account number of the agreement, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

 

BACKGROUND TO CLAIM

 

4 This claim appears to arise from an account I opened on or around DATE

 

5. During the period in which I operated this account, I encountered significant problems in being able to maintain the monthly repayment. I engaged PayPlan, a debt management company, in order to formulate and manage a Debt Management Plan

 

6. A Debt Management Plan is an informal arrangement in which any income after the basic necessities for survival are divided in a pro-rata fashion amongst creditors.

 

7. The claimant is a consumer credit license holder and is required by law to abide by the requirements of the OFT Debt collection guidelines. This guidance is located at http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf , and was updated in 2006.

 

8. I would bring the courts attention to the following sections of guidance:

 

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

 

2.6 Examples of unfair practices are as follows:

…

f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so

9. They also regularly called me at work, putting calls through the main switchboard, and placed my job at risk despite me requesting they only contacted me in writing.

 

10. The OFT Debt Collection Guildelines state as an unfair practice:

 

OFT 2.2g

ignoring or disregarding debtors' legitimate wishes in respect

of when and where to contact them, for example, shift workers who

ask not to be telephoned during certain times of the day

11. I therefore put the claimant to strict proof that they behaved fairly in demanding full repayment of money when they had a statement of affairs that expressly showed such repayment was not possible.

 

12. Northern rock is a signatory of the is a signatory to the Banking Code, and has voluntarily agreed to abide by its requirements. It is my belief that abiding by the banking code is an implied obligation of the contract, or that it is enforceable in equity it. The terms of the banking code are laid out at http://www.bankingcode.org.uk/pdfdocs/BANKING%20CODE.pdf

 

13. I would like to refer to the section on Financial Difficulties set out in

point 14

 

14.1 We will consider cases of financial difficulty sympathetically

and positively. Our first step will be to try to contact you to discuss the matter.

 

14.2 If you find yourself in financial difficulties, you should let us know as soon as possible. We will do all we can to help you to overcome your difficulties. With your cooperation, we will develop a plan with you for dealing with your financial difficulties and we will tell you in writing what we have agreed.

 

14.3 The sooner we discuss your problems, the easier it will be for both of us to find a solution. The more you tell us about your full financial circumstances, the more we may be able to help.

 

14.4 If you are in difficulties, you can also get help and advice from debt-counselling organisations. We will tell you where you can get free money advice. If you ask us to, we will work with debt-counselling organisations, such as Citizens Advice Bureaux, money advice centres or the Consumer Credit Counselling Service. Their contact details are as follows.

….

You should also be aware that there are other companies that charge a fee for managing your debts. It is your responsibility to check the fees that may be charged before asking these companies to act on your behalf.

 

14.5 If you have debts with many creditors, a debt-counselling organisation may complete a Common Financial Statement (or equivalent acceptable to us) on your behalf, which we will accept as the basis for negotiations with you in drawing up a debt-management plan.

 

14.6 In certain circumstances we may pass your debt to another organisation or debt-collection agency. We will always choose reputable firms which also agree to follow the Code when arranging repayment.

 

14.7 In other circumstances, we may sell your debt. We will always choose reputable firms if we do this.

14. I did in fact contact the claimant, and engaged PayPlan (a reputable no fee company suggested by northern rock) in order to negotiate a DMP with the claimant. Payplan and the creditor came to an arrangement on my behalf.

 

15. I made regular payments, via payplan of the agreed amount in relation to the DMP every month.

 

16. Despite this agreement, Northern Rock unilaterally decided to end the DMP, and sent me a demand letter for the full sum of money owing. I again sent a current statement of affairs and increased my payments to the point that it caused substantial hardship to me.

 

17. I therefore believe that the claimant has not abided by the overriding objective in this matter, or in accord with implied terms of the contract

 

CONFUSION ON THE VALID AMOUNT OF CLAIM

 

18. There seems some substantial amount of confusion about what the claimant is actually claiming they are entitled to:

 

18.1 In the court form they claim £28,993.87, and arrears to the extent of 1,130.68

 

18.2 In the default letter, dated 8 September 2007, the claimant states my indebtedness as £29,029.79, and arrears to the extent of £862.96

 

18.3 In a demand letter dated 4 October 2007, the claimant states my indebtedness as £29022.79 and arrears to the extent of £862.96

 

18.4 In a letter dated 15 November 2007, marked as without prejudice in response to a disclosure request on 12 November 2007, the claimant states my indebtedness as £28,969.38 with arrears of £6,379.94

 

 

19. Notwithstanding that the letter was marked without prejudice, I do not believe this letter is privileged information since:

 

19.1 It was written in response to a request under the disclosure requirements of the Civil procedure rules and,

 

19.2 It includes admissions of a purely of a factual nature, and was not part of any settlement negotiations.

 

20. I will discuss these issues further in the section marked “Default Notice” below, but notwithstanding that I put the claimant to strict proof as to the amount of any indebtedness.

 

21. In particular, in the letter mentioned in section 17, the claimant produced a statement of account in which the proper rebate of interest on termination was not given, and it seems clear to me that the claimant has filed a claim based on the entire interest charge of the loan, and not the proper rebate.

 

22.1 I respectfully refer the court to Consumer Credit (Rebate on Early Settlement) Regulations 1983 (SI 1983/1562) as amended

 

2

Entitlement to rebate

(1) Subject to the following provisions of this Regulation, the creditor shall allow to the debtor under a regulated

consumer credit agreement a rebate at least equal to that calculated in accordance with the following provisions of these

Regulations whenever early settlement takes place, that is to say whenever, under section 94 of the Act, on refinancing,

on breach of the agreement, or for any other reason, the indebtedness of the debtor is discharged or becomes payable

before the time fixed by the agreement, or any sum becomes payable by him before the time so fixed.

22. Therefore I put the claimant to strict proof as to its right to claim the entire amount of total charge for credit.

 

 

DEFAULT NOTICE

 

23. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended (“Default Regulations”)

 

24. Reg (2) of the Default Regulations states the requirement of a default notice

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

25. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

 

26. With regard to the default notice, I would quote paragraph 3 of schedule 2:

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

27 The creditor in the default notice states that In accordance with clause 4 of my terms and conditions, that monthly payments have not been maintained, and that arrears of £862.97 are now outstanding.

 

28. I deny that I have breached clause 4 of the agreement which states

 

4. Rebate on Early Settlement

If the outstanding balance of the Total Amount Payable is repaid early you may be entitled to a rebate of charges. Details are available from Northern Rock personal Loans – Selectapost 19,

Rotherham

,

S97 3GD

29. I further put the claimant to strict proof

 

29.1 that the amount of any arrears is correct and,

 

29.2 that the amount of any balance on the agreement is correct, and that the failure to include the amount of any rebate in the default notice doesn’t invalidate the said notice under paragraph 8 of the Default Regulations

 

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

30. I particularly note that the significance of failing to include the rebate in any default / court claim is that under term 5 ii it would enable Northern Rock to charge interest from the date of judgement, not only on the principal sum owing, but also on interest that it would have accrued over the entire life of the agreement.

 

31. The consequence of a incorrect default notice are laid out in s87(1) of the consumer credit act 1974:

 

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

…

32. Consequently, in the absence of a valid default notice, I deny the claimant has any right to demand earlier payment of any sum, or terminate the agreement.

 

33. I am aware this may seem very technical law – indeed it is very dry – and may seem almost trivial. My understanding is that that parliament and the courts implemented such strict requirements as to the contents and form of a default notice and the requirement of such a notice to be exactly adhered to is that it must be crystal clear to the debtor what the nature of the default is, how much is outstanding, what the nature of the breach is, and how to rectify it.

 

34. I do not need to tell the court that the consequences of a default – even if not taken on to court– are that the debtor may find it impossible to get reasonably priced credit, purchase a home, or carry out normal daily living. In the case of court enforcement, a default could lead to bankruptcy or the loss of your home.

 

 

 

 

IMPROPERLY EXECUTED CREDIT AGREEMENT

 

35. In this section I will refer to the Consumer Credit (Agreements) Regulations 1983 No 1553 as amended (“Agreement Regulations”)

 

36. The agreement is improperly executed for the following reasons:

 

36.1 It does not contain the proper heading specified under REG 2(1) column 2 1©

 

 

 

36.2 It does not contain the interest rate (rather then the APR) under REG 2(1) column 1 9A, column 2:

“

(2) The rate of interest on the credit to be

provided under the agreement or, where more

than one such rate applies, all the rates in all

cases quoted on a per annum basis with details of

when each rate applies.”

36.3 The signatory document does not contain the warning statement in schedule 2, column 1 (3)

 

2 All types. MISSING PAYMENTS

Missing payments could have severe consequences and make

obtaining credit more difficult.

33 the court is able to consider the impact of these deficiencies in the agreement under s127 of the consumer credit act 1974.

 

CHARGES

 

37 It is denied that any accurate Default Notice in the prescribed format was received and I put the Claimant to strict proof that said document was accurate.

 

38 In respect of that this is denied, during the period in which the Account was operating the claimant debited £60 to the Account in respect of purported breaches of contract on the part of the Claimant and charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

39 The defendant contends that:

 

39.1 The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

39.2 The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

SUMMARY

 

40 Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

 

41 I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

 

42 Further, in the claimants particular of claim, the claimant states I failed to make any payment under the agreement after the default notice and demand letter. For the record, I made regular monthly repayments via Pay Plan, and increased the payment to the claimant in the month prior to legal action. I have at no point refused to pay the claimant what money I could. I think, given my personal situation and my willingness to pay what money I could under the agreement despite the advice of several debt charities to file a bankruptcy petition should show that I intended before action to repay as much of this loan as possible.

[womble72]

Hi Tom,

 

Looking at the draft it look's excellent.

 

I really appreciate the time you have taken to help my family and me at this difficult time.

 

Kind Regards

 

Womble

[mammyslad]

Best of Luck Womble.

ML

[womble72]

Thanks for your support ML

 

Womble

[pelham9]

Using the figures in your agreement the annual rate of interest that NR are actually applying is 7.738% The APR is the above figure rounded to one decimal place so 7.7%APR is correct. This trick to sqeeze extra interest out of borrowers is almost universal with lenders and in your case nets them around £80 more than an actual rate of 7.7% Interesting but I do not think it helps because the interest rate does not have to be shown in a CCA for this type of loan only for running account loans (eg credit cards). The APR is very rarely the rate that you will actually pay.

[womble72]

Hi Tom/Paul,

 

How is the draft going for my defence please.

 

Also one more question the defence you are putting together for me do i need to submit to the courts by the 8th December or do i just take it with me to court when they arrange a date for the claim.

 

Kind Regards

 

Womble

[pt2537]

Hi womble, i know tom was drafting the defence, i will ask him if what he has posted is finished

 

with regards to the actual filing of the defence you need to submit it to the court via Mcol or in a paper document for by the 8th

 

Mcol does have a limit to the number of letters you can use so its probably going to be that you will have to use a paper format.

 

im sure tom will get it finished by tomorrow and then its a case of making sure it gets taken to the court or posted using a reliable method

 

regards

paul

[womble72]

Hi Paul,

 

Thank you.

 

Womble

[pt2537]

Hi Womble

 

ive emailed tom and i will also send him a PM so one way or the other we will get this sorted for you,

 

regards

paul

[tomterm8]

Hi, womble,

 

I think the defence I posted earlier should be OK at this stage; we can always flesh it out with witness statements etc if necessary.

 

There should be instructions in your court claim pack as how to send it by post. if you do so, it is vital to send your letter by special next day guaranteed delivery.

 

If you have any problems, you can call the court (should be on top right hand corner of the forms). remember to make sure you have a copy yourself;)

 

Good luck.

[pt2537]

Thanks for looking in tom

[pt2537]

dont forget to include your case details on the defence womble

 

i would suggest heading the document like this

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxx- Claimant

and

 

Womble - Defendant

 

 

 

 

and i always like to include a statement of truth at the end ,not sure if tom put one on or not but go for something liek this

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

 

 

 

 

 

regards

paul