Bryan Carter Were Winning, Can I Turn It Around?**WON** ANOTHER DISCONTINUED CASE

[storm]

This is actually quite a long story and a bit complicated, but hopefully I have found something that could actually make it alot more simple.

 

Fact is that Bryan Carter have taken my wife to court for an old Egg Loan, although Cyclone Asset Management are down as the claimant.

 

She has certainly had an Egg Loan in the past, however the agreement they have sent differs from the agreement number they are claiming and the dd payments that my wife was making out of her account to Egg at the time, differ to the payments on the agreement

 

It is fairly obvious they have sent the wrong agreement and I have asked the court for a stay (well my wife has), on the basis we want the correct agreement and to check the amount being claimed is correct. Also we have asked for proof that Cyclone Asset Management have a right to collec t any monies owed.

 

The court in it's wisdom has ingnored the fact that figures are being plucked from thin air, the agreement numbers differ etc and will strike out the defence on 3rd December ( as a bare denial), unless my wife files a particularised defence. In other words he has seen a signed document and that is that as far as he is concerned.

 

Anyway I have just seen something that might make this fairly simple. Isn't one of the prescribed terms for a loan agreement the total charge for credit, or total amount payable.

 

Neither of these terms are there we just have loan amount, insurance amount and the two amounts added together, no total amount payable or total charge

 

Is this a simple case of using the Wilson case to get it struck out, or am I being too optimistic?

[pt2537]

Hi Storm,

 

the first thing which sprung to mind was have they issued a default notice which complies with the relevent regulations,without a default notice a creditor is not permitted to demand repayment of any sum under a breach of contract nor are they allowed to terminate the agreement etc

 

i will need to look into the point you've raised as im not sure off the top of my head

 

the prescribed terms which must be in the document are

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

 

i will take a look at the CCA and the regs to see what i can come up with

 

 

regards

paul

[storm]

Unfortunately I don't think I'm going to get anywhere by asking if a default notice has been sent

 

The court have given my wife until Monday to come up with an amended defence and as the court don't seem to feel that the fact they have sent a different agreement number, to the one in which the claim was for is enough to look into things further I think I am going to get nowhere fast

 

As I say there seem several reasons to challenge the validity of this particular claim but the court don't seem to think they are relevant

[pt2537]

ok, well the court of appeal seem to think that a default notice is necessary

 

[2001] GCCR 2255

Woodchester Lease Management Services Ltd v Swain and Co

Court of Appeal

Kennedy LJ, Sumner J

14 July 1998

Consumer hire - equipment lease to partnership - non payment - default notice overstating amount due - whether complying

with Consumer Credit Act 1974, s 88

Principle: A default notice requiring payment by the hirer in order to remedy the breach is ineffective if it specifies a sum

exceeding that actually necessary to do so.

Facts: The plaintiffs hired a photocopier to the defendant firm of solicitors under a rental agreement providing for

quarterly payments. The agreement provided, among other things, that on default the plaintiffs might terminate the hiring by

written notice. After some two years, the defendants ceased payments. The plaintiffs sent a default notice which complied

with the statutory requirements in form. The notice, however, when it specified the amount required to be paid to remedy the

default, specified an amount exceeding that strictly required to do so. The assistant recorder held that the notice was

nevertheless effective, on the basis that if the defendant paid the amount required it would have done more than needed to

remedy the breach. The defendant appealed.

Held: Allowing the appeal, that the Consumer Credit Act 1974, s 88, required the owner to specify not only the nature of

the breach but the action required to remedy it. It was part of a statute plainly enacted to protect consumers. Since many

regulated agreements would be complex, most hirers would be individuals, and the owner would be in a far better position to

provide precise information about that remedial action, the section should be construed as requiring an accurate statement not

only of the nature of the breach but of the action required to remedy it (subject, it might be, to a de minimis dispensation).

Accordingly, the default notice did not satisfy s 88 and was not effective.

 

 

so i think it has legs for sure, as i said i am going to have to look at the regulations

 

you could try pm'ing peterbard hes teh resident oracle on credit agreements nad would be able to tell you off the top of his head if the total amout of credit is needed

[pt2537]

BINGO!!!!!!

SCHEDULE 6

PRESCRIBED TERMS FOR THE PURPOSES OFSECTIONS 61(1)(A)AND127(3)OF THE CONSUMER CREDIT ACT 1974

Regulation 6(1)

** Debtor to indicate which products they wish to purchase by

putting a tick next to the name(s) of the product(s).

*** Creditor to insert the cross-references to the terms of the

agreement containing the terms relating to the credit for the

products being purchased.]

TYPE OF AGREEMENT PRESCRIBED TERMS

(1) (2)

Amount of credit

1. Restricted-use debtor-creditor-supplier

agreements for fixed-sum credit--

A term stating the amount of the credit, which may

be expressed as the total cash price of the goods,

services, land or other things, the acquisition of

which is to be financed by credit under the

agreement.

(a) to finance a transaction comprising the

acquisition of goods, services, land or other things

specified in the agreement or identified and agreed

on at the time the agreement is made;

(b) under which the total amount payable by the

debtor is not greater than the total cash price; and

© under which there is no advance payment.

2. Agreements for fixed-sum credit not falling

within paragraph 1.

A term stating the amount of the credit.

 

 

there you go,so it should have the term stating the amount of credit

 

this comes from Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and is a prescribed term so wilson is relevent here

 

ive got a copy of the regulations if you want them, if so pm me an email address and i will send them to you

[pt2537]

posts 4 and 5 seem to say that you have a case!!!!!!!!!!!

[robcag]

.....

Anyway I have just seen something that might make this fairly simple. Isn't one of the prescribed terms for a loan agreement the total charge for credit, or total amount payable.

 

.....

This was something I was under the impression had to be shown as I suggested in this post, but peterbard replied further down the thread here with his explanation. According to Peter this would only affect the agreement as follows:

"The Total charge for credit is not a prescribed term for this type of agreement although it is a required term so the lack of it would make the agreement enforceable only by order of the court."

 

HTH

 

Rob

[postggj]

just a point has anyone on the forum had sucess with wilson in the court,

all that i have read have been settled out of court

[storm]

Thanks for the replies, just to clear up it was the total amount payable that was missing on the agreement, not the total amount of credit, so it does appear this is not a prescribed term and can be enforced by the court

 

I have also seen floating around that 2 page agreements cannot be enforced, however my understanding is that as long as your rights under the cca act is on the same page as your signature this is also ok

 

If that is the case we are back to the fact that the agreement number they have sent is different to the agreement number they are claiming, but the judge doesn't seem to think this is a problem

[pt2537]

ok well i would definatley PM peterbard for sure.

 

now then, do you have a copy of the agreement they gave you that you can post on here so we can look at it and try and find flaws with it

[storm]

Just looking more into this as time is short, has anyone established who 'Cyclone Asset Management' are, I can't find them anywhere on the internet and there is not much infor here

 

They are the claimant but I am wondering if they actually exist

[robcag]

Just looking more into this as time is short, has anyone established who 'Cyclone Asset Management' are, I can't find them anywhere on the internet and there is not much infor here

 

They are the claimant but I am wondering if they actually exist

I don't know if this is of any use, but Googling I found this:

http://www.creditgate.com/companysearch/credit_CY_1.aspx

Company Name:CYCLONE ASSET MANAGEMENT LIMITED

Company Type:

Limited Company

 

Company No:

04243606

 

Company Address:

CYCLONE ASSET MANAGEMENT LIMITED

7-10 Chandos Street

Cavendish Square

LONDON

W1G 9DQ

 

Rob

[storm]

Ah thanks, this seems to be one of those 'virtual' addresses where the company probably doesn't actually operate from the address

 

Would they and Mr Carter be one and the same, we genuinely have never heard of had any dealings with Cyclone Asset Management until the claim came through with them as the claimant

[storm]

Just a quick update and a quick question

 

Put in a full defence and now have a form back saying the judge has said we need to send a statement of truth asap

 

At the end of the defence my wife signed saying that all the facts were true to the best of her knowledge and dated it

 

We thought that constituted a statement of truth

 

Can anyone enlighten as to what we have missed out?

[pt2537]

Hey Storm,

 

thats got me baffled,

 

if you look at this link http://www.hmcourts-service.gov.uk/courtfinder/forms/n11_0406.pdf

 

at the bottom you will see the statement of truth, so long as you statement of truth was along those lines i cant see a problem

 

i would be inclined to call the court today and enquire what they need

 

 

regards

paul

[storm]

Just a quick update on this, and a bit of advice please if possible on the next step

 

The defence was put in to the court's satisfaction and since then we have been asked to provide standard disclosure, copies of documents for inspection and statements of fact

 

We have complied with all of this and now have the pre trial checklist questionnaire

 

On checking with the court, Bryan Carter have not complied with any of the court's instructions so we feel we have a good chance of getting the case struck out

 

Should we just attach an application to have the case struck out, pay the requisite fee and take our chances, or is there a better, more suttle and cheaper way around it

[42man]

Don't forget to ask for your costs too....

[storm]

Bryan Carter have discontinued

[pt2537]

well thats quite normal for mr carters

 

if your defence was "wibble" id say you'd have got the same result , they dont seem to like trying to fight a case they know they wont win, the McMuffins

 

still its a good result

[diskmandave]

Excellent news! Very well done!!

 

Balloons........!

 

 

[Dorabell]

Well Done Its Nice To Hear Good News :-)

[Brassed off]

Well done Storm You even got the balloons

[42man]

Yes great news Storm !!! really pleased for you...

[pt2537]

thread moved to the legal success forum:)

[patrickq1]

HI PT CAN YOU HELP ON THIS THREAD LISTED BELOW

PATRICKQ1

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/130275-hfo-services-limited.html#post1371482