Next Cca - Now court date for June

[lexis200]

Thank you for satiating my nosy tendencies PT:)

 

A very interesting few paragraphs there that I've only seen snippets of before - it's nice to read them in context!

 

Lexis:)

[Gazza112]

Subbing with interest

[manicblonde]

OK, I'll copy it first, blank out my details and then try and out it on here, are the any tip on how to do this anywhere please?

[manicblonde]

Ok I have these in a PDF now, How can I now get these onto here as there is no attach button?

[citizenB]

When you hit post reply, scroll down and you should see a "manage attachments" button.

[manicblonde]

OK, here they are! I HOPE!:grin:

Next claimant docs.pdf

[citizenB]

Well there is no Default notice there and neither is there a "signed by yourself" agreement from what I can see.

 

Well now, having looked at that lot again, they are claiming that letter VAT3 is their Default notice.. ummm, nope, it isnt not by any stretch of the imagination:D

[pt2537]

Oh dear, Dumbass alert,

 

If thats their witness statement, then they are in a world of crapppppppppppp

 

Oh id fillet their donkey for them , quite frankley the point id raise the argument that there never was a signed agreement therefore s61(1) (a) was never complied with and as a result, s127(3) operates and they are shafted with a capital S

[pt2537]

Nope that aint a default notice, and if they say it is, they fall foul of s87(1) & 88 CCA

 

also the agreement they exhibit is defective, i have a claim for a client on the go at the mo on the exact same agreement so i can say, its unenforceable as i have that admitted in their defence!!!!!!!!!

[citizenB]

Oh dear, Dumbass alert,

 

If thats their witness statement, then they are in a world of crapppppppppppp

 

Oh id fillet their donkey for them , quite frankley the point id raise the argument that there never was a signed agreement therefore s61(1) (a) was never complied with and as a result, s127(3) operates and they are shafted with a capital S

 

:grin::grin:

[pt2537]

The agreement supplied as referred to in point 8 is defective and does not

contain the “prescribed terms” in their correct form, required by schedule 6

column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI

1983/1553) and is missing the terms required by Para 3 and Para 4 of

schedule 6 of SI 1983/1553 which are as follows

 

a) A term stating the credit limit or the manner in which it will be

determined or that there is no credit limit.

 

b) A term stating the rate of any interest on the credit to be provided under

the agreement

 

There is no term stating the credit limit or the manner in which it will be

decided or that there will be no credit limit, nor is there a sufficient term

within the document supplied which sufficiently sets out the rate of any

interest to be applied to the credit. There is a term setting out how the

repayments may be made

 

Additionally, the document fails to contain the statutory information

required by Schedule1 of Consumer Credit (Agreements) Regulations

1983 (SI1983/1553) inter alia, there are no details in monetary terms as to

what charges can be levied in the event of the debtor defaulting as

required by schedule 1 Para 22 SI 1983/1553,

 

 

There are no details of any items entering into the total charge for credit

as required by Schedule 1 Para 10(a) SI 1983/1553,

 

The APR is stated as being variable yet no where within the agreement is

there a term as required by schedule 1 Para 18 of SI 1983 / 1553

 

 

 

I think that is the salient points as to what is wrong with the "true copy" agreement

 

so even if they can over come that which is impossible, being that they can convince the judge that the agreement even though it was not signed is enforceable, the true copy is clearly duff so either way their claim should fail

[Docman]

You can only assume Cohen's are hoping they get before a District Judge who has never heard of the CCA. No doubt an application for summary judgment will arrive shortly!

[manicblonde]

Thanks you all very much, I feel a lot more confident now!! I am going to prepare a written statement to read out at court. SHould I include the info posted above?

[citizenB]

Thanks you all very much, I feel a lot more confident now!! I am going to prepare a written statement to read out at court. SHould I include the info posted above?

 

 

Yes, I will try and find you something on Default notices as well.. just to put the boot in properly you understand

[pt2537]

oh and if you really want to upset em, they have failed to set out the Name and address of the creditor on the head of the "true Copy" agreement. this is a breach of schedule 1 para 2 Consumer Credit Agreement Regulations 1983(as amended)

 

as for the Default notice (if thats what they think it is) It fails to follow the form and content requirements of section 88 CCA 1974 and Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561)

[manicblonde]

You can only assume Cohen's are hoping they get before a District Judge who has never heard of the CCA. No doubt an application for summary judgment will arrive shortly!

 

 

Whats an application for summary judgement please?

[citizenB]

Here you go,

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "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 effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

 

I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 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

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 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 comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

 

This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on (They dont appear to have given you a separate Termination Notice so here you would put the date of the Court Claim . Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[I've got no money]

Have a read at a skeleton argument that I did - it explains most of the law

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/169400-hfo-services-help-wanted-18.html#post2157493

 

Summary Judgment is when they try to argue that your defence is really weak and that it should be struck out without a trial

 

Its' the latest tactic they're using BUT on the basis of your case they don't have any realistic prospects of SJ

[manicblonde]

My lord looks like they have made a right pigs ear of things!! HA HA!! Let hope I am still laughing mid june!

 

Thanks Guys!! If I put this all into a written statement could I PM it to one of you to have a quick look at before I go to court please?

[manicblonde]

I am do Greatful for you help! Will defo make a donation next payday!!

[pt2537]

Right then taken direct from Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561)

 

you will see that this laughable default notice DOES NOT comply with the law!!

 

 

Regulation 2(2)

 

(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[, 8A] and 9 to 11 of that Schedule.

 

 

Regulation 2(5-9)

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in

the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or

bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these

Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in

relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the

words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the

agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

(7) Where any note requires any words to be omitted, those words shall be omitted or deleted.

 

(8) Where a notice is to be given under sections 76(1) and 98(1) of the Act in relation to a regulated agreement, one

notice may be given under the two sections reproducing the combined effect of Schedules 1 and 3 to these Regulations.

 

(9) Sections 76(1), 87(1) and 98(1) of the Act shall not apply in the case of non-commercial agreements in relation to

which no security has been provided.

 

 

 

 

schedule 2

 

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

 

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

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.

 

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

 

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER

ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences

of the failure by the debtor or hirer to comply with the default notice in the following form--

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

FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

 

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the

creditor or owner.

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action

intended to be taken to enforce any security.

 

Action intended to be taken by creditor or owner

 

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement--

 

(a) to terminate the agreement;

 

(b) to demand earlier payment of any sum;

 

© to recover possession of any goods or land;

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(e) to enforce any security;

 

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

Retaking of protected hire-purchase etc, goods

[in the case of a hire-purchase or conditional sale agreement relating to goods,

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right

vested in him and where the total amount payable under the agreement does not exceed £7,500,

a statement in the following form--]

"BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE

AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF

THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR

WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER

AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE

THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT

BELOW".

 

Note:

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor

or owner and be followed by--

(a) either

 

(i) the total amount payable under the agreement, or

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total

amount payable under the agreement; and

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

 

Requiring earlier payment of any sum

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).

 

 

General

10

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR

NEAREST CITIZENS' ADVICE BUREAU".

 

11

A statement in the following form--

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

 

[manicblonde]

Can I send this to add to my bundle to court or do I have to wait until the day please?

[manicblonde]

Hey you guys!!! THANKYOU ALL!

 

Nexts case against me has been dismissed! I was uable to atend court due to a bereavement in the family so sent a letter to the judge explainig this and my arguements, got a letter in the post that the claim be dismissed!

 

I am assuming that this is good news!! Could not have done it all without your help! How do I make a donation? also, how do I get them to remove the default they have placed on my credit file please??

 

:D:D!!

[manicblonde]

ok, figured out the donation thingy!!

[citizenB]

Congratulations:D

 

You miight find it a bit of a struggle to get them to remove the default, but have a read of the following threads which will give you an idea of what is involved.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

http://www.consumeractiongroup.co.uk/forum/high-street-stores/110148-car2403-ge-capial-bank.html

 

HTH