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hi i wonder if anyone can give me some guidance. i will try to keep this as short as p[ossible.

 

in 2003 i purchased a car on finance, unfortunatly i missed a payment and when i phoned to rectify it i was charged £100+ for missing the payment. i was extremely annoyed by this and told them they had a cheek and as far as i was concerned they were acting outside the terms of a fair contract and as such they could come and take the car back and i would see them in court when they tried to recover the money of the finance!

i moved house but gave them the details of where i went, which i can prove as i had letters from them at the new address regarding the collection of the car, they then duly came and took the car away from my new address.

that was the last i heard.

however due to the iminent sale of my previous matrimonial house, on checking with the land registry, there is a interim charge on the house in relation to the car.

It transpires that there had been a county court judgement then 45 days after that they have applied for an interim charging order.

i have not heard anything about this as it appears that they were sending all correspondence to a previous address, even though they had my current address. had it been possible to defend myself in court in the first instance then i would be looking at about 8k as a charge if i had lost, however the figure now stands at 17K.

as the original CCJ was not applied correctly if i apply to have it set aside due to failure to notify of hearing, and non reciept of default notice, will that automatically cause the charge to fall?

i truly believe that the sending of the letters etc to my previous address has been a deliberate ploy to escalate the charges, by the company.

what are my best options here and would there be any point to paying the £75 to ask for the ccj to be set aside? and is there anyway in light of the conduct of the company that i can get back to a point where i can argue the case about the initial charge applied for missed payment?

 

thanks

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thnaks connif! yup! as a bit of an update i had requested all correspondence they had sent to me over the time! in november of last year they had sent a letter, again to the wrong address, saying i owe 10k and if i dont pay it they will file to B/C me. so it went from 10k in november to 17k in december when they asked for the CCJ.

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  • 1 month later...

after not having any replies to the above post it was pointed out to me it was in the wrong section! thanks Paul!

 

here is the CCA.....

 

http://i301.photobucket.com/albums/nn68/crazyadi68/CCA.jpg

http://i301.photobucket.com/albums/nn68/crazyadi68/cca2.jpg

 

although it has been looked at now and all appears ok with it!

 

which leaves me with the above scenario still i.e getting the original ccj set aside!

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due to being unwell for a little while i have not done very much with this! but have now come up with an argument to have the CCJ set aside, can anyone add anything or point out where i may be going wrong.

 

application to have ccj set aside as creditor has not sent default notice to last known address, in addition the DCA do not have legal right to debt as they have never sent a transfer of debt notification. along with the failure to deliver to me the above documents no notice of court action, or judgement was recieved by me!

 

the basis of this is that the DCA has sent all corrspondence to a previous address of mine, where i have not lived for a number of years, the original finance company had been given the details of my present address and that is on file with them and as such the DCA should have made contact at that last known address.

 

i would have defended the original CCJ as the finance company were in breach of contract i have documented eveidence of their charges for missed payments, letters re same payments etc, they actually charged me over double what the notified charges were.

 

any advice guys? oh court case this friday! as i said i have been unwell so this and everything else got left by the wayside!!

 

thanks for your time

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When you say that the court case is this Friday - did you mean Friday 30th (in which case this is too late) or do you mean June 6th?

 

I'm confused as to how the total amount came to £17k as they should set-off the amount they got from selling off the car to some one else and any payments that you have made.

 

If the court case has happened, would you mind sharing what happened, or if it's just about to happen if you've managed to get a defence together?

 

YOu said that the original loan was for £17,600. If the CCJ was for £17k that implies that they gave the car away for nothing which really doesn't sound right

 

 

You may have some grounds to have the CCJ set aside

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hi.

 

the case was the 30th so has already passed now. the judge agreed that MCE had served the papers correctly, even though they sent to an address i lived at 5 years ago! however he did reserve judgement on wether to set aside the CCJ as he said to me that i have to show that the papers were not served properly (which he said i had failed to do) and/or i have a reasonable chance of defending the amount claimed. he has given me two weeks to serve an argument to the court and MCE.

 

the amount claimed is the original default amount 12k, because they are saying that they repossesed as opposed to my cancelling which would have been 8k, plus interest on the 12k.

 

to be honest even though they have notes of the conversations i had with them and on two occasions i state i want to cancel and i have copies of letters i sent requesting cancellation, i dont really know where i am going with this and as i cant afford a solicitor then i think i may just let them win.

 

thanks for your input

 

adi

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I really suggest that it would be worth contacting national debt line:-

 

National Debtline, for FREE CONFIDENTIAL and INDEPENDENT ADVICE call 0808 808 4000

 

0808 808 4000

 

Is the creditor named on the CCJ and in this case Online finance or is it some one else?

 

If it is someone else then online finance needed to have sent you a notice that the debt had been assigned to someone else by recorded delivery. That is one ground to have it set aside.

 

OK, if you have copies of the letters that you sent them requesting it be cancelled then that can be used in your defence as well.

 

Did MCE provide a breakdown of how they arrived at the £12k figure? Even assuming, they did reposses then they need to take into account the following:-

 

A) Total Price £17626.85

 

less

 

B) Payments you made £xxx ?

 

Less

 

C) What they got for selling the car £xxxx ?

 

So the total claimed should be A - B - C = total

 

I don't know what or how many payments you made

 

Also, the charge of £100 is (I would suggest) a penalty and so unenforceable. How many of these charges did they apply to your account?

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thanks nicklea i will give them a call worth a shot i guess! just down with the whole thing now

 

the claim is in the name of MCE, i never recieved a notice of assignment but i guess they will just say they sent it to my last known address and the judge will accept that as he did with the serving of the papers. even if the persons living there now had signed for it and not me!

 

no i have had no individual breakdown of charges however from the paperwork that has been slowly fed through to me ( i did ask for all the notes, papers etc they held in relation to the case under subject access but they refused and said i had to apply using data protection rules and pay them £10 and they would have 40 days to comply, so still havent had it all. only getting things from them as a rebuke to my application to court) the figures are as follows...

 

A) £17626.85

 

B) £1926.24

 

C) £5975.00

 

That should have left a figure of £9725.61 however the outstanding balance after repossesion was £10602.72 as a result of charges added for letters and auction costs.

 

MCE applied for the £10469.72, plus £133.00 post termination costs. plus interest from termination date to the date of issue plus interest from judgement until payment. the CCJ was for £16052.17. the interim charging order is against £16920.05. as a result of the interest mentioned i guess.

 

so at the moment if, sorry when, they win the total recovered will be 2k from me, 6k, from the car and 17k from me total of 25k nice work if you can get it i guess!!

 

one thing i will add is that the hearing for the charging order is on the 18th june in light of the reserved judgement on my application to set aside the CCJ, can i argue that the interim charging order should be set aside while the outcome of CCJ is decided? as to all intents and purposes the courts have yet to decide if i actually owe any money? just a stab in the dark!!!

 

thanks for your interest

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Turn up and ask for a stay on the charging order ??

 

Im sure someone will be able to offer a little better advice, but I have just had a similar problem myself, and i tried to rely on the fact I had applied for stay on the Application for set-aside.

Judge did not see ( not in the file !) and granted final charging order.

I have managed to get it taken back to intrim , pending a hearing that has been adjorned for 3months :/

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As I understand this (and please remember I am very new to all this too), what you are asking for by way of stay is that it the judement does not proceed any further, pending the outcome of another judgement (this could not even be your case).

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anyone offer me anymore advice on this? please! only have till friday to possibly come up with something or just let it be!

 

anyone know what paragraph of the CCA covers being able to voluntarily end an agreement?

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Hi,

 

Is it MCE Portfolio that have taken you to court? Not online finance – this is a very important question

 

If it is then they are a real bunch of ***!!%[email protected]@£**.

 

 

Here are some initial thoughts for what to say:-

 

 

I have made an application that the original judgement be set aside

 

As a result of this I request that the final charging order be stayed until such time as this set aside application is heard.

 

 

 

My grounds for setting aside the original judgement are as follows:-

 

Service of Claim Form

The claim form and notice of judgement were not properly served on me. Civil Procedure Rules Part 6.5(6) state that I should have been served at my usual or last known address.

 

On xx/xx/2007 I moved to 26 anyroad, anytown, ab1 1ab. This was the address from which the creditor took back possession of the car and to which they wrote to me on the following occasions (copies of which are attached hereto):-

 

a)Letter dated xx/xx/2007 concerning …

b)Letter dated xx/xx/2007 concerning..

c)etc

 

(I presume that the date below will be later than the date above)

On xx/xx/2008 a Claim Form was sent to 13 oldroad, oldtown, ol1 1ol even though the Creditor was aware that I was no longer living there. They were aware of this as they had previously sent xx letters addressed to me at my new address in anyroad, anytown.

 

I therefore submit that the Claim Form was not properly served.

 

Assignment of Debt

 

I submit that any alleged assignment of this debt to the Claimant, MCE Portfolio (is that the correct name), is ineffective and so the Claimant has no standing before the court.

 

The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 196(4) prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery)

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

 

Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I further deny that any document given under the hand of the Assignor (online finance) was sufficiently served on me.

 

Termination of Contract

 

Notwithstanding that the Claimant has no right of action, I also submit that the amount claimed is also incorrect.

 

On xx/xx/2007 I informed the original creditor (online finance) that I wished to terminate the contract. The reason for doing this was that they tried to impose an unlawful penalty charge on me and I was not prepared to accept that. Terminating the contract was my right under s99 Consumer Credit Act 1974 (“CCA”):-

 

99. Right to terminate hire-purchase etc. agreements.

(1) At any time before the final payment by the debtor under a regulated hire-purchase or regulated conditional sale agreement falls due, the debtor shall be entitled to terminate the agreement by giving notice to any person entitled or authorised to receive the sums payable under the agreement.

 

The original creditor accepted my termination and arranged to take back the car from my new address referred to above (copies of letters from the creditor relating to this are attached).

 

Section 100 of the CCA deals with my liability following termination:-

 

100. Liability of debtor on termination of hire-purchase etc. agreement.

(1) Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.

 

I therefore submit that the amount claimed by the Claimant is overstated as they have not taken into account s100 CCA.

 

 

 

Termination of Contract and Unenforceable Penalty

 

In case it is argued by the Claimant that I did not terminate the agreement under s99 CCA (which is denied), I have attached copies of letters that I sent to the original creditor at the time. I put the Claimant to strict proof that the agreement was not terminated by myself.

 

I note that the Claimant has refused my request to disclose information that is vital to my defence under a Civil Procedures Rules Part 18 Practice Direction Request. Had they responded to this request, I contend that it would have shown that the agreement was in fact terminated by myself.

 

I submit that s100 CCA is very clear about my liability at the time of termination

 

Further, the claimant is barred from claiming additional amounts above that shown in s100 CCA due to s173 CCA:-

 

173. Contracting-out forbidden.

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

Term 7.4 of the contract which purports to allow the Claimant to charge more is unenforceable as it imposes a greater penalty than is set out in s100 CCA. This is further backed up by the Unfair Terms in Consumer Contract Regulations 1998.

 

 

Default Notice

 

I put the Claimant to strict proof that a valid default notice as required by s87 CCA was sent to me.

 

In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 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 comments of Kennedy LJ:

 

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

 

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice.”

 

“Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid.”

 

As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

The original creditor made a number of charges to the account that are not allowed for in the contract. In addition, even if they were allowed for (which is denied) then they were at such a level that they were penalties that are unenforceable under common law and the Unfair Terms in Consumer Contract Regulations 1999. As such I have a right of set-off of these charges and any interest applied thereon.

 

In addition, as these charges would have been included in any Default Notice that might have been sent then that Default Notice cannot have been accurate and so must have been invalid following the case of Woodchester

 

 

Summary

 

I submit that the Claim Form was not properly served on me as the original creditor knew that it was not my last known residence

 

I submit that the Claimant has no standing before the court as any alleged assignment of the debt from the original creditor (online finance) is ineffective under the Law of Property Act 1925.

 

I submit that any amount that might be claimed is overstated as it is a greater penalty than is set out in s100 CCA.

 

I deny that a valid default notice as required by s87 CCA was sent to me.

 

Statement of Truth

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

Edited by nicklea
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thanks nicklea! thats brilliant! yes it is MCE portfolio that have taken me to court.

 

couple of things if i may? hopefully you will be able to get back to me before i need to serve this. 2 days from this moment they need to be in the post!

 

as for my putting them to strict proff re non delivery of my request to terminate can they just say 'we never recieved it' ?

 

the termination of contract... where you have put that the original creditor had agreed to take back the goods.....well this is not the case as it transpires they took back the goods on a reposession according to them and had served me with default notices i had never recieved AFTER i had requested termination both verbally and via letter. it seems they deliberately ignored my request.

 

also as far as the default notice is concerned strictly speaking the amount claimed is incorrect as they were charging me the full amount for the car finanace, even though i had requested, both verbally which is in the phone transcripts, and via letter that i wished to terminate. does this fact make the default notice invalid? as in i should never of recieved it as i wasnt in default or they should not have been pusuing me as if i was in default at the very least.

 

the question on the serving of the papers to the correct address has already been considered by the judge and he agreed that they had been served in the only way possible for MCE and also ONline finance. i guess i cannot revist this? even though your argument is better than the one i used!! lol

 

one final question this could be important, when i called and asked to have the agreement terminated they tried to talk me out of it and infact said it would cost me more to terminate than let the agreement run its course and besides they will stop me terminating. now this is obvioulsy incorrect as they cant stop me terminating nor would it have been more expensive. is there anything that governs this sort of behaviour?

 

thanks again nicklea, its very much appreciated!

 

adrian

Edited by crazyadi
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as for my putting them to strict proff re non delivery of my request to terminate can they just say 'we never recieved it' ?

 

They can try but I'll put in something to get round that

 

even though i had requested, both verbally which is in the phone transcripts, and via letter that i wished to terminate.

 

Ah, you never said that you had phone transcripts.

 

This could be very important to your case. I assume that the date of these transcipts is before the date on the default notice?

 

Without giving away anything personal can you tell me what is actually in these transcripts? Does it show you actually requesting a termination? and what was the outcome of that conversation? eg did they say that you had to write in to them etc?

 

 

the termination of contract... where you have put that the original creditor had agreed to take back the goods.....well this is not the case as it transpires they took back the goods on a reposession according to them and had served me with default notices i had never recieved AFTER i had requested termination both verbally and via letter. it seems they deliberately ignored my request.

 

When you say "according to them" - is it online who are saying this or mce?

 

also as far as the default notice is concerned strictly speaking the amount claimed is incorrect as they were charging me the full amount for the car finanace,

 

They can only issue a default notice if you are in default and in that case it would be for the full amount so it would be the correct amount

 

 

even though i had requested, both verbally which is in the phone transcripts, and via letter that i wished to terminate. does this fact make the default notice invalid? as in i should never of recieved it as i wasnt in default or they should not have been pusuing me as if i was in default at the very least.

 

Are you saying that when the default notice was allegedly sent to you that you weren't behind on any payments?

 

the question on the serving of the papers to the correct address has already been considered by the judge and he agreed that they had been served in the only way possible for MCE and also ONline finance. i guess i cannot revist this? even though your argument is better than the one i used!! lol

 

You won't necessarily get the same judge and, regardless, I would still include it as it is true

 

one final question this could be important, when i called and asked to have the agreement terminated they tried to talk me out of it and infact said it would cost me more to terminate than let the agreement run its course and besides they will stop me terminating. now this is obvioulsy incorrect as they cant stop me terminating nor would it have been more expensive. is there anything that governs this sort of behaviour?

 

This could be very helpful to your case but it does depend on what exactly is on these transcripts. If you are not happy posting it on the forum then you can send it to me in a private message. If you are happy to do that then I will have a look at it.

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sorry Nicklea i dont know how to multi quote so i will number my replies in relation to your questions.

 

1) cool as im sure they will just deny as they have with everything, they had the cheek to say i hadnt replied to a card tthrough my door the other day, i did and it was actually supposed to have been sent to someone in liverpool! there admin is clearly not reliable! now the guy in liverpool has no idea they are trying to get hold of him!!!

 

2) date of transcripts is before the default, i dont remember the entire conversation, what i do know is that the entire conversation is not included, along with other conversations not transcriptied at all, but yes i said i wanted to terminate and that is in the transcript, it doesnt say they said to write in but my recollection is that is what they said.

 

3) the only default notice provided to the court was a copy of one fron online, i have never questioned a default notice from MCE as i assumed it is not relevant?

 

4) if i had requested to twerminate though i couldnt be in default could i?

 

5) at the time i requested termination i was NOT behind with payments, by the time the default notice was issued i was behind, as i hadnt paid anything as i had sent a request to terminate

 

6) i will insert it as truth but i am getting the same judge he requested it to be listed for himself, end of august i believe the next hearing re the setting aside is although i have to send argument by thursday 4pm.

 

7) my scanner is not working at the moment i will try to find away to get them on the pc, maybe my camera, if not i will transcribe the relevant parts myself.

 

thanks nick again much appreciated!

Edited by crazyadi
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hi nicklea...

 

ok not been able to do anything to upload the phone notes, wlthough i was wrong to say they were transcripts i thing, they are basically notes of action on the account which include what happened when i phone, but in a "customer said this" way as opposed to a true account of a word for word coversation.

 

i had a problem from the beggining when there was a delay to a payment and i phoned to inform them that there would be a delay..at that point they stated fine but you will recieve charges. i objected and suggested i ened the agreement, to which i was told i was not allowed to! the not allowed part is not noted in the paper work.

 

feeling compelled to pay i continued to make monthly payments after rearranging the date of collection.

 

after i further payment in may i phoned and made payment...after going through the figers i realised that they ahd made a charge for late payment . i phoned back and complained and was effectively told poor people shouldnt buy things they cant afford. at this point i stated i wanted to end the contract. this is part is bizzarely not in the notes. (i thought i had seen it but on looking through when i checked dates it was for the following months) i then sent a termination letter.

 

according to paperwork i now have they sent a default notice in the middle of june, 2 weeks after a sent my request to terminate.

 

there is other conversations regarding the collection of the car over the following months where by it was stood outside my house for six months before they would take it away. but dont seem to relevant,, except for one other conversation in august where i demanded they come and collect the car as it was supposed to be repossesed months ago!! i feel that was a bad choice of words on reflection but from a lay person position thats what they do when they come to collect it!!

 

the only other thing i notice is that the (online finance) default notice I have reads

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN.................

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN.........

 

i understand that it has to be set out a specific way with bold etc does the NOT have to be in a certain format? grassping at straws i know!

 

also the default notice is dated 16 JUL 04 the date they are telling me i have to take action by is 26 JUL 04 thats only 10 days shouldnt it be, not less than 14?

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I have made an application that the original judgement be set aside

 

As a result of this I request that the final charging order be stayed until such time as this set aside application is heard.

 

 

 

My grounds for setting aside the original judgement are as follows:-

 

Service of Claim Form

The claim form and notice of judgement were not properly served on me. Civil Procedure Rules Part 6.5(6) state that I should have been served at my usual or last known address.

 

On xx/xx/2007 I moved to 26 anyroad, anytown, ab1 1ab. This was the address from which the creditor took back possession of the car and to which they wrote to me on the following occasions (copies of which are attached hereto):-

 

a)Letter dated xx/xx/2007 concerning …

b)Letter dated xx/xx/2007 concerning..

c)etc

 

[i presume that the date below will be later than the date above]

On xx/xx/2008 a Claim Form was sent to 13 oldroad, oldtown, ol1 1ol even though the Creditor was aware that I was no longer living there. They were aware of this as they had previously sent xx letters addressed to me at my new address in anyroad, anytown.

 

I therefore submit that the Claim Form was not properly served.

 

Assignment of Debt

 

I submit that any alleged assignment of this debt to the Claimant, MCE Portfolio, is ineffective and so the Claimant has no standing before the court.

 

The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

 

Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I further deny that any document given under the hand of the Assignor, online finance, was sufficiently served on me.

 

Termination of Contract

 

Notwithstanding that the Claimant has no right of action, I also submit that the amount claimed is also incorrect.

 

On xx/xx/2007 I informed the original creditor, online finance, by telephone that I wished to terminate the contract. I then sent them a letter [or was it more than one?] dated xx/xx/2007 confirming this in writing (copies of which are attacted hereto). The reason for doing this was that they tried to impose an unlawful penalty charge on me and I was not prepared to accept that. Terminating the contract was my right under s99 Consumer Credit Act 1974 (“CCA”):-

 

99. Right to terminate hire-purchase etc. agreements.

(1) At any time before the final payment by the debtor under a regulated hire-purchase or regulated conditional sale agreement falls due, the debtor shall be entitled to terminate the agreement by giving notice to any person entitled or authorised to receive the sums payable under the agreement.

 

Section 100 of the CCA deals with my liability following termination:-

 

100. Liability of debtor on termination of hire-purchase etc. agreement.

(1) Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.

 

I therefore submit that the amount claimed by the Claimant is overstated as they have not taken into account s100 CCA.

 

 

In case it is argued by the Claimant that I did not terminate the agreement under s99 CCA (which is denied), I would refer the court's attention to a transcript [or whatever it is called if it wasn't a transcript] dated xx/xx/2007 that was disclosed to me by the Claimant (copy attached hereto).

 

The relevant part of the transcript [or whatever it si called] states:-

 

[put in here what it actually says that is relevant to terminating word for word]

 

This clearly shows that I requested termination of the contract on xx/xx/2007.

 

[Does it show anything about them trying to persuade you not to or tell you that they couldn't do it?]

 

Following this telephone conversation with Online Finance I wrote to them on xx/xx/2007 confirming that I wished to terminate the agreement (copies attached hereto).

 

Section 176 CCA states that my notice of termination was properly served by posting it to the creditor's address. The fact that the original creditor may claim not to have received it is irrelevant:-

 

176. Service of documents.

— (1) A document to be served under this Act by one person ( “the server ”) on another person ( “the subject”) is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

(2) The document may be delivered or sent by post to the subject, or addressed to him by name and left at his proper address.

(3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

This is backed up by Section 7 of the Interpretation Act 1978:-

 

7. References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

I submit that the burden of proof clearly lies with the Claimant to show, not that they didn't receive the letter but, that I didn't post it.

 

I would like to refer to the authority of Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573 in support of this. This was a case where the intended recipient of a statutory notice claimed that it was never received. The judgement of the court also referred to s7 Interpretation Act 1978 and held that, despite the recipient not receiving notice that, in fact, notice had been given.

In giving the judgement of the Court of Appeal, Lord Justice Walker first referred to the summing up of the Judge in the High Court and said:-

 

[20] "After referring to various authorities the judge said that it was conclusively established that compliance with a prescribed form of service was valid service, even if the notice did not in fact come to the knowledge of the intended recipient."

 

 

Lord Justice Walker then went into some detail as to the reasoning that led to the judgement of the Court of Appeal:-

 

[26] "Notice is not the same as knowledge. But the evident purpose of requiring Notice to be given to a particular person is that the contents of the Notice should be communicated to, and become known by, that person. Nevertheless there is no doubt that statutory provisions may lead to the position that a valid Notice has been given even though the intended recipient does not know of the Notice (and is not at fault in not knowing about it)."

 

He then went on to refer to a previous case in the Court of Appeal, that of Galinski v McHugh and he said:-

 

This point was very clearly made by Slade LJ (delivering the judgment of the court) in Galinski v McHugh (1988)8 ) 57 P&CR 359, 365. He said

 

“In our judgment the obvious object .. is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, it is intended to assist the person who is obliged to serve the Notice, by offering him modes of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.”

 

In the case of Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, Megaw LJ said in reference to giving notice:-

 

"If any of those methods are adopted, they being the primary methods laid down, … then sufficient service is proved."

 

He went on to say:-

 

"It does not matter, even if it were to be clearly established that it had gone astray in the post."

So, it is clearly accepted by the Court of Appeal that statutory provisions such as s176 CCA and s7 Interpretation Act will mean that I have given valid notice of termination and so complied with s99 of the CCA, yet the creditor may also claim that they did not receive my letter.

 

Returning to the case of Blunden, Walker LJ said:-

 

[28] "One of the purposes of these provisions is to establish a fair allocation of the risksof any failure of communication. The other main purpose is to avoid disputes on issues of fact (especially as to whether a letter went astray in the post or was accidentally lost, destroyed or overlooked after delivery to the premises of the intended recipient) where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain."

 

So the Court of Appeal has clearly shown that the main purpose of statutory provisions such as s176 CCA and s7 Interpretation Act that defines when a notice is deemed to be effective is to avoid disputes of fact such as the present case. s176 CCA and s7 Interpretation Act clearly state that in my posting the letter notice is deemed to be given.

 

I submit that s100 CCA is very clear about my liability at the time of termination. Further, the claimant is barred from claiming additional amounts above that shown in s100 CCA due to s173 CCA:-

 

173. Contracting-out forbidden.

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

Term 7.4 of the contract which purports to allow the Claimant to charge more is unenforceable as it imposes a greater penalty than is set out in s100 CCA. This is further backed up by the Unfair Terms in Consumer Contract Regulations 1998.

 

 

Default Notice

 

I put the Claimant to strict proof that a valid default notice as required by s87 CCA was sent to me.

 

In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 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 comments of Kennedy LJ:

 

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

 

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice.”

 

“Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid.”

 

As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

The original creditor made a number of charges to the account that are not allowed for in the contract. In addition, even if they were allowed for (which is denied) then they were at such a level that they were penalties that are unenforceable under common law and the Unfair Terms in Consumer Contract Regulations 1999. As such I have a right of set-off of these charges and any interest applied thereon.

 

In addition, as these charges would have been included in any Default Notice that might have been sent then that Default Notice cannot have been accurate and so must have been invalid following the case of Woodchester

 

 

Summary

 

I submit that the Claim Form was not properly served on me as the original creditor knew that it was not my last known residence

 

I submit that the Claimant has no standing before the court as any alleged assignment of the debt from the original creditor (online finance) is ineffective under the Law of Property Act 1925.

 

I submit that any amount that might be claimed is overstated as it is a greater penalty than is set out in s100 CCA.

 

I deny that a valid default notice as required by s87 CCA was sent to me.

 

Statement of Truth

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

 

Hope this helps

Edited by nicklea
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6) i will insert it as truth but i am getting the same judge he requested it to be listed for himself, end of august i believe the next hearing re the setting aside is although i have to send argument by thursday 4pm.

 

Just becasue you get the same judge doesn't mean that he'll remember any of these things or that they will seem to be so important

 

one final question this could be important, when i called and asked to have the agreement terminated they tried to talk me out of it and infact said it would cost me more to terminate than let the agreement run its course and besides they will stop me terminating. now this is obvioulsy incorrect as they cant stop me terminating nor would it have been more expensive. is there anything that governs this sort of behaviour?

 

You can only really do something with this if you have proof of it

 

thanks nick again much appreciated!

 

You can always click my scales

 

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thanks Nicklea.

adding the needed items and printing off!

 

your brilliant

 

scales ticked! would only let me do it once though!!!!

 

to answer your question about wether the notes say anything about me not be able to do it then unfortunately no they have just put ??? after the note where i said i wanted to cancel.

 

one final thing can you explain this to me please?

 

“In our judgment the obvious object .. is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, it is intended to assist the person who is obliged to serve the Notice, by offering him modes of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.”

 

In the case of Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, Megaw LJ said in reference to giving notice:-

 

"If any of those methods are adopted, they being the primary methods laid down, … then sufficient service is proved."

 

He went on to say:-

 

"It does not matter, even if it were to be clearly established that it had gone astray in the post."

 

as it is now over 4 years since the request was sent i dont have any proof of postage. does this still apply?

 

 

thanks again

 

 

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to answer your question about wether the notes say anything about me not be able to do it then unfortunately no they have just put ??? after the note where i said i wanted to cancel.

 

ok then you won't really gain much by telling the judge about them trying to mislead you, it would probably just muddy the water and you're better off just sticking to things that you can prove.

 

one final thing can you explain this to me please?

 

“In our judgment the obvious object .. is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, it is intended to assist the person who is obliged to serve the Notice, by offering him modes of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.”

 

In the case of Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, Megaw LJ said in reference to giving notice:-

 

"If any of those methods are adopted, they being the primary methods laid down, … then sufficient service is proved."

 

He went on to say:-

 

"It does not matter, even if it were to be clearly established that it had gone astray in the post."

 

That whole long section starting with:-

 

I would like to refer to the authority of Blunden v Frogmore Investments

 

and ending with

So the Court of Appeal has clearly shown that...

 

is there to show the judge that a superior court (the Court of Appeal) has already made a decision on this and that, unless the judge can show that this case is different, then he has to follow the decision of that court.

 

Just to remind you, the Court of Appeal decided that if an Act says that a notice can be given by post and it doesn't specifically say anything about the receiver must get it then, as long as the sender has done it properly, the notice is deemed to be served even though the receiver never gets it.

 

Some other acts are different, for example the Social Security Administatration Act which deals with benefit claims etc says that notice is only given when an application is received in the social security office, so just posting your application for eg housing benefit isn't good enought as the act specifically says that it doesn't count until they actually receive it in their office.

 

The CCA however is different and just putting it in the post box is sufficient service - it doesn't matter if they ever got it or not

 

 

as it is now over 4 years since the request was sent i dont have any proof of postage. does this still apply?

 

In the Civil court it is down to the "balance of probabilities" the Claimant (not you) has to prove that it is at least 51% likely that what they say is true.

 

In this case, because of the authority of the Court of Appeal and s176 CCA etc the Claimant has to prove that you did not post the letter, it is important to make this point clear to the judge - it is not good enough to prove that they did not receive it, they must prove that you did not post it (you can imagine how difficult that is going to be). It is not up to you to prove that you did. They have to do the proving.

 

If it had not been for that transcript then it would simply be their word against yours and, to be honest, it would be down to the judge on the day as to who he believed.

 

But the fact that the Claimant's own records show that you called up on xx/xx/2003 or whenever to cancel the agreement is strong extra evidence in your favour that you did actually post those letters. As long as your copies of the letters that you sent show them as being sent very shortly after you telephoned them then I would suggest that that is very strong evidence supporting your case.

 

The thing to remember is that the Claimant can't dispute the transcript where you said that you wanted to terminate the agreement as it's their own document.

Edited by nicklea
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In the Civil court it is down to the "balance of probabilities" the Claimant (not you) has to prove that it is at least 51% likely that what they say is true.

 

I think it is even clearer than that:

 

Deemed service

References to notices or documents being sent ‘by post’ within the Act bring into the

operation the Interpretation Act 1978 by which service is deemed to be effected by

properly addressing and posting a letter containing a document. Unless the contrary is

proved, service will be deemed to have been effected at the time when the letter would

be delivered in the ordinary course of post.

 

http://www.berr.gov.uk/files/file42400.pdf

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Thanks for the input conniff.

 

However, you will see that I have already included s7 interpretation act in the defence that I wrote. You will also see from my previous post that, while it does apply to a lot of acts, there are some that it doesn't apply to.

 

I would suggest that it is not always as clear cut as you may suggest. The defendant will state that he did post the letter but if, for example there were no transcripts of telephone conversations and the creditor were to say:-

 

well your honour, this is what happened. We sent a default notice to the debtor and then repossessed the car. How come he never said anything about sending the letter terminating the agreement before now - it all sounds a bit dodgy to me. If he had really posted a letter then wouldn't he have phoned up to complain about the default notice?

 

Faced with this a judge may well decide that the letter hadn't been posted and prefer the creditor's version of events.

 

The fact that the creditor's own transcript records the request from the debtor puts him in a much stronger position in my opinion.

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