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    • I wouldn’t want to live under a repressive government that had a centrally controlled economy and actively suppressed dissent. Yet such an economy could bring massive resources (financial and manpower) into play.   Coronavirus: How can China build a hospital so quickly? https://www.bbc.co.uk/news/world-asia-china-51245156   It isn’t just that it is being built so quickly, but also that it is being built with infection control in mind, and means other healthcare facilities can transfer suspected cases there, retaining their capacity to treat non-respiratory illness patients.
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    • The key determinant to UB’s scenario is : at what point in relation to when they develop symptoms are those people infectious.   Chickenpox, for example, is infectious (by airborne droplet spread) 2 days before the rash appears. So, the patient might feel a “bit unwell / virally ill” without any specific signs, and not have sufficient symptoms / signs to allow action to be taken.   There isn’t enough data (yet!) to know when 2019-nCoV becomes infectious.   https://www.cdc.gov/coronavirus/2019-ncov/about/transmission.html   “Best guess” is when they start having symptoms of coughing and sneezing, at least that will be peak infectivity.   If they are soon to become symptomatic, how infectious is a single cough or sneeze? Nobody yet knows. Edit: hot off the press: China coronavirus 'spreads before symptoms show' https://www.bbc.co.uk/news/world-asia-china-51254523   As for “Do the Government/NHS have sufficient contingency measures in place to deal with any such crisis ?“   The Agency leading (at least for England, each of the other 3 nations of the UK has a similar body) is Public Health England. It isn’t part of the NHS per se, (but works with the NHS). It is “government”, but quasi-autonomous.  It describes itself as “We are an executive agency of the Department of Health and Social Care, and a distinct organisation with operational autonomy”.   PHE has issued guidance, both for primary care and secondary care, for (amongst other things): a) who gets tested, b) case management, and c) infection prevention measures.   Whilst more information specific to 2019-nCoV is being learnt, these are pretty much based on what we know from SARS and MERS, but I’d expect them to get “fine-tuned” as we know more.   So, there are plans.   2 factors spring to mind immediately, though.   A) Can the plans be fully implemented? Hospitals are already facing bed pressures. If demand for resources (such as FFP3 masks) soars: will supplies match demand? (Both for “total number of units available overall, over the total period of demand”, but equally importantly  “supplies deliverable on demand: what would be the equivalent of ‘cashflow’ for a bank“)   B) Availability of testing. With a small number of cases meeting the case definition, each can be tested. If 2019-nCoV becomes widespread, will the availability of testing match demand? What will the turnaround time for testing be?   Will testing matter if it becomes widespread? At the moment, there is widespread availability of testing for Flu and the most common respiratory viruses. This is useful so that they can prioritise the isolation of Flu A patients in hospital, and offer them treatment for FluA, and Mrs Bloggs who looks like they might have flu, but actually has picornavirus on a background of chronic bronchitis doesn’t get isolated and doesn’t get flu treatment once her results are back.   Will testing matter as much for 2019-nCoV? Not for treatment (as there is no specific antiviral at the moment). How about for decision on isolation? That’ll depend on how many cases there are (there may not be enough side rooms), and if testing supply can match demand.   (not quite “worst case” but “not great case”) scenario is : A) Hospital wards: not enough side rooms. “Cohort nursing” in bays (or even “cohort wards”), so Mrs Bloggs with her rhinovirus and chronic bronchitis gets put in the bed next door to Mrs Bull who has 2019-nCoV (or, even: next door to Mr Bull, if things get bad enough the ‘same sex’ rules get suspended). B) Split Emergency Departments. Non “?flu, ?2019-nCoV” go to one side, those with compatible respiratory symptoms go to another waiting area. All the respiratory symptom patients lumped in, waiting, together. I’d expect once people realised where they would be waiting they would only go if they really had no other choice ...... On the plus side, much was learnt from the SARS outbreak, so they are better informed than when they first faced SARS
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StayingCalm

StayingCalm vs Abbey with no CCA**WON**

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3876 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

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Hi all

 

Well I’m trying to !!! (stay calm that is) having recently received Court Papers !!!!! This is a whole new experience to me.

 

Sorry for short notice, but I need help with a Defence for Northampton CC which needs to be in by Wednesday 28th May 2008.

 

I have been reading on this site for several months now and have gleaned loads of very useful information which has been extremely helpful. However I would now be very grateful for help with the defence as I do not feel confident in this area.

 

Brief details:

 

MBNA (Abbey) Credit Card issued March 1998.

 

23 Feb 08 -- Sent S.A.R - (Subject Access Request) for All Data delivered 26-02-08

 

25 Feb 08 -- Sent CCA request delivered 26-02-08

 

17 Mar 08 -- Sent Complaint letter re non-compliance with CCA request.

 

19 Mar 08 -- Abbey reply to S.A.R - (Subject Access Request) received 20-03-08.

Letter stating UNABLE TO PROVIDE COPY OF THE ORIGINAL CREDIT AGREEMENT.

Statement information for last 6 years.

Copy of CURRENT Terms and Conditions.

No other Data.

 

25 Mar 08 -- MBNA Default Notice received 26-03-08

DN dated 25-03-08, action by 08-04-08

Note NOT ALOWING 14 DAYS AFTER SERVING

 

26 Mar 08 -- Reply to Complaint letter and full response by 15 April, but no mention of CCA request.

 

14 Apr 08 -- LBA letter from Restons Solicitors received 15-04-08

 

16 Apr 08 -- Received further letter from Abbey re complaint, full response by 14 May.

 

25 Apr 08 -- N1 Claim Form from Northampton for just under 12K.

 

POC

The Claimant claims payment of the overdue

balance due from the Defendant under a

contract dated on or about 27/03/1998

in the sum of 11921.30 inclusive of

interest to the date of this summons at

8% per annum from 14/04/08 to 24/04/08

 

PARTICULARS a/c no xxxxxxxxxxxxxxxx

 

DATE ITEM VALUE

14/04/2008 Default Balance 11895.23

Post Refrl Cr NIL

 

24/04/2008 Interest 26.07

TOTAL:- 11921.30

 

Together with;-

Interest pursuant to s69 County Courts Act 19

at the rate of 260.72 pence per day

to the date of Judgment or sooner payment.

 

 

 

28 Apr 08 -- Sent CPR letter to Reston’s delivered 29-04-08

 

30 Apr 08 -- Reply from Reston’s Solicitors, Warrington:

 

Thank you for your letter of 28th April 2007.

 

Your request appears to have been taken straight from one of a number of consumer websites; the express intention of which is stated to be to frustrate and delay legal proceedings. We consider your request to be an abuse of court process and to be otherwise invalid, in any event.

 

Yours faithfully

Mr X Xxxxx, Litigation Executive

Pp Reston’s Solicitors Limited

 

 

 

07 May 08 -- Sent Reminder for CPR to Reston’s delivered 08-05-08

 

07 May 08 -- Sent copies of above letter, CPR request and Reston’s reply to Abbey.

 

12 May 08 -- Submitted Acknowledgment of Service by Money Claim Online.

 

21 May 08 -- TO DATE STILL NO REPLY TO CCA REQUEST FROM ABBEY

AND NO REPLY TO CPR FROM RESTON’S OR ABBEY.

 

And of course I have received all the normal demands and harassment by letter, phone and postcard etc. etc.

 

 

 

I am amazed that they have gone down this route with no CCA.

 

Having studied several superb defences written by pt2537 and others I would be very grateful for help with something suitable for my specific circumstances above. I would assume this needs to be a holding defence?

 

To me the important issues are

 

1 No agreement or reply to CCA request

2 Default Notice not allowing 14 days after serving

3 Reply letter from Restons

4 No response to CPR

5 All the above while the account in dispute.

 

 

Please advise if you require to view any documents and I will try to scan copies. So sorry for the short time scale but I have had technical problems which should now be sorted.

 

Any and all help would be very much appreciated.

Many thanks and trying to

StayCalm

Edited by StayingCalm
Corrected date of DN issue.

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oh i love cases like this

 

would be helpful if we could get a look at the Default notice , remove your personal details first as i bet there will be more wrong with it than this

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Thanks for yor help pt

I will try and insert Default Notice now

 

Sorry will try again later!!!

Edited by StayingCalm

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Right here we go again

 

CCF21052008_00001.jpg

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Hi stayingcalm,

 

If you send a pm to pt2537 he should be back on the site now.

 

Have a look at the top of the page where it says Welcome, stayingcalm

 

and then click on where it says private messages

 

If you don't get anything sooner, I'll do something for you on Tuesday - I'm away over the bank holiday.

 

By the way, love the comment from the solicitors

 

Your request appears to have been taken straight from one of a number of consumer websites; the express intention of which is stated to be to frustrate and delay legal proceedings. We consider your request to be an abuse of court process and to be otherwise invalid, in any event.

 

One of the purposes of sites like this is to educate people as to what their legal rights actually are. These people really don't like it when they are beaten at their own game by "amateurs"

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Hi SC,

 

Will get back to you later today, ive got quite a bit on at the mo

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Thanks Nick, for your offer of help and support, looks like Paul will be assisting later today, but would welcome your input on tuesday.

 

Thank you Paul. I will not be available approx 4.00 to 6.00 pm, but any other time would be fine. Hope this is OK with you.

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S.A.R - (Subject Access Request) received by MBNA 26/2/08

This is the reply I received on 20/3/08

 

Abbey 2008.03.19

 

Included were; 6 months statement info and copy of current t & C

Edited by StayingCalm
add text

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15/4/08 - Received first letter from Restons

 

Image of Abbey 2008.04.14 - Photobucket - Video and Image Hosting

 

 

I did not reply to this as I didn't think they would carry through with no CCA!!!!!!!

Edited by StayingCalm
add text

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My CPR request received by Restons 29/4/08

 

My address

xxxxxxxxxxxx

xxxxxxxxxxxxxxxx

xxxxxxxx

28th April 2008

Posted Royal Mail Special Delivery by 1pm Next Day

Tracking Number: ZV 6928 xxx xxx xx

Mr x xxxxx

Restons Solicitors Limited,

Trinity Chambers,

800 Mandarin Court,

Centre Park,

WARRINGTON,

WA1 1GG.

In the NORTHAMPTON (CCBC) County Court

MBNA EUROPE BANK LTD -v- xx xxxxxxxx xxxxxxx

Claim Number: XXXXXXXX

Dear Mr xxxxxxx

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you and the Claimant hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

xxxxxxxx xxxxxx

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My CPR reminder received by Restons 8/5/08

 

My address

xxxxxxxxxxxxx

xxxxxxxxxxxxxxxxx

xxxxxxx

7th May 2008

Posted Royal Mail Special Delivery by 1pm Next Day

Tracking Number: ZV 6928 xxxx xxxx xx

Mr x xxxxxx

Restons Solicitors Limited,

Trinity Chambers,

800 Mandarin Court,

Centre Park,

WARRINGTON,

WA1 1GG.

In the NORTHAMPTON (CCBC) County Court

MBNA EUROPE BANK LTD -v- XXXXXXXXXXXXXX

Claim Number: XXXXXXXXX

Dear Mr Xxxxxx

 

REQUEST FOR INFORMATION - Reminder

I refer to my letter dated 28th April 2008 requesting information under the Civil Procedure Rules, received by you on the 29th April 2008, and your reply dated 30th April 2008.

I utterly revoke your comments and wish to make it absolutely clear that whilst you accuse me of delay tactics I am eager to take the case to court as the hearing will allow me to obtain a just outcome.

In reality it is your client MBNA who has been delaying and deviating from supplying information which has been requested according to my rights and their responsibility as a lender.

The facts are that the claimant is in clear breach of “The Bills of Exchange Act” and “The Consumer Credit Act” which renders the agreement invalid and unenforceable.

The timescale and information requested in my letter dated 28th April 2008 still stand. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

xxxxxxxxxxx xxxxxxxx

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Letter to Abbey received 8/5/08

 

My address

Xxxxxxxxxxxxxxx

xxxxxxxxxxxxxx

xxxxxxxxx

7th May 2008

Posted Royal Mail Special Delivery by 1pm Next Day

Tracking Number: ZV 6928 xxxx xxxx xx

Abbey Credit Card,

MBNA Europe Bank Ltd,

Registered Office,

Stansfield House,

Chester Business Park,

CHESTER,

CH4 9QQ.

Dear Sir/Madam

RE ACCOUNT NUMBER: 4129 xxxx xxxx xxxx Visa Credit Card.

In the NORTHAMPTON (CCBC) County Court

MBNA EUROPE BANK LTD -v- xxxxxxxxxxxxxxx

Claim Number: xxxxxxxxxx

For your information please find enclosed copies of correspondence to and from your representative in this matter Mr M Dolan from Reston’s Solicitors, namely:

My Request for Information dated 28th April 2008.

Reply from Reston’s dated 30th April 2008.

My letter dated 7th May 2008.

I look forward to your early compliance.

Yours faithfully

 

Xxxxxxxx xxxxxxx

 

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hi stayingcalm,

 

If you don't get anything beforehand I'll put something together for you tomorrow morning before I go off

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Here you go - hope it helps:-

 

In the xxxxxxxx County Court

Claim number xxxxxxxxx

Between

xxxxxxxxxxx- Claimant

and

XXXXXXXXX - Defendant

Defence

 

 

 

 

1.Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5(1)(b).

 

2.The Particulars of Claim disclose no legal cause of action and are vague and insufficient. They 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 method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim. There appears to be doubt as to the actual date of the agreement as well

 

3.On 25/02/2008 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974 (“CCA”). The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of the deemed day of receipt of such request.

 

4.For clarity, s78(1) states:-

 

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor,

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

 

 

5.S78(6) of the CCA sets out the consequences of failure to comply with such a request and states:-

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence

 

6.It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) CCA and it is averred that the claimant has no right of action due to s78(6) until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

7.Therefore since the documents have not been supplied as requested pursuant to the CCA I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

8.On 23/02/2008 I sent to the Claimant a Data Subject Access Request pursuant to s7 Data Protection Act 1998 requesting inter alia a copy of the original signed executed agreement.

 

9.In a reply dated 19/3/2008 (exhibit xx attached hereto) the Claimant admitted that they did not have a copy of the original credit agreement.

 

10.The requirement of s127(3) of the CCA is that unless the court is satisfied that a document containing the debtors signature and all prescribed terms exists the court is precluded from enforcing this agreement. Since I was unaware of the requirements of the CCA at the time of signing any application form, I do not know whether the agreement is enforceable at this time.

 

11.Further to the case, in an attempt to ascertain on what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 28/04/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice.

 

12.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, particularly as I am a litigant in person. All I have received in relation to my request is a letter from the claimant’s solicitors dated 30/04/2008 stating that my request is an abuse of court process and anyway invalid.

 

13.It is denied, as suggested in the above paragraph, that my request for disclosure is an abuse of process or otherwise invalid. The courts attention is drawn to the fact the claimant has failed to provide any evidence of the existence of the debt and has even admitted that they do not have the agreement in their possession. They also have provided no evidence as to the manner in which the amount has been calculated. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents pursuant to CPR Part 18 Practice Direction as they are reasonably necessary and proportionate for me to understand the case against me and to prepare my own case.

 

14.The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the CPR I have not yet had the opportunity to assess if the documentation the claimant claims to be relying upon to bring this action even exists

 

15.The CCA expressly states that there must be an agreement in existence which has been signed by both the debtor and creditor, otherwise the debt is unenforceable by way of s127(3):-

 

16.127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

 

17.Any agreement, to be enforceable, must also contain the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

18.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in the paragraph above it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

19.I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

20.On 25/03/2008 the Claimant sent me a Default Notice. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). These state that a clear period of 14 days must be allowed from the date of service to allow the debtor to rectify the default. The default notice was dated 25/03/2008 so the deemed date of service was 27/03/2008. The default notice failed to give 14 clear days from that date so is ineffective

 

21.Notwithstanding the above paragraph, 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 and include an accurate figure required to remedy any such breach.

 

22.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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

23.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

24.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

25.In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

26.Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

27.In addition, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 1998 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

Statement of Truth

 

 

I believe the above statement to be true and factual

 

 

Signed …………………

 

Name

Date

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Thanks so much Nick for your help, not have time to study it yet but feel much better.

I have just received a PM from Paul and he is going to be available over the weekend.

Many many thanks

sc

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Thanks for the PM Paul. I will keep looking in from time to time.

Thank you

sc

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Hi all

Have been looking through my Statements for charges. Could anyone please advise what count as Penalty Charges?

Besides Late Payment and Over Limit charges, do the like of Cash Advance and ATM charges qualify as Penalty ones.

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Hi SC

 

Just looking in to say sorry for not getting back to you today RE your defence.

 

due to my illness, my memory is badly affected and itend to forget things, ive stuck a post it to the PC so tomorrow i will get cracking on the defence

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Hi SC, im working on the defence now

 

just wanted to let you know

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In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

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 contract referred to, 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 contract 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.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

 

The relevant Act of Parliament in this Case

 

5. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

6. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008)

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

7. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

8. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked SC)

 

9. In addition to point 8, I wrote to XXXXX requesting all the data relating to my account pursuant to Section 7 of the Data Protection Act 1998, the request was sent recorded delivery along with the maximum statutory fee of £ 10 GBP. This was received by XXXXX on xx/xx/2008

 

10. On xx/xx/2008 I wrote to XXXXXXX setting out that they had failed to comply with my statutory request made pursuant to the Consumer Credit Act 1974

 

11. On xx/xx/2008 XXXXX replied to my subject access request made under the Data Protection Act 1998 stating that they did not retain the signed credit agreement for my account, they did supply some information but not sufficient amounts to be considered compliance with the S7 Data Subject Access Request

 

12. On the 25th March I received a document purporting to be a default notice, it is averred that the document is not compliant with the Consumer Credit Act 1974 or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. The reasons of which will be set out below under the heading Default Notice

 

13. On 26 Mar 08 I received a reply to my complaint letter (referred to in point 10) and full response was promised by 15 April, but no mention of CCA request

 

14. On the 15 April 08 i received a Letter Before Action from Restons Solicitors which I found rather bizarre since the account was subject to a dispute and awaiting a response as promised in point 13

 

15. On the 16 April 08 Received further letter re my complaint, full response was promised by 14 May 08.

 

16. On the 25th April I received this claim, which was deeply upsetting as the claimant or its agents had totally ignored my correspondence and forged ahead with litigation which it is averred was unnecessary, and furthermore not permitted as the claimant has failed to follow statutory procedure laid out in the Consumer Credit Act 1974 and the regulations made under it and furthermore

 

17. It must be noted that to date, the claimant has not supplied a copy of the credit agreement as requested in point 8. The Consumer Credit Act 1974 clearly sets out the consequences of non compliance in particular section 78(6) states

(6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence

18. The consequences are clear of the non compliance with the statutory request for information as outlined in S78 (6) (a) insofar that the claimant would not have a right of action while the default continues and furthermore an offence has been committed as per S78 (6)(b)

 

19. Notwithstanding point 18, if the claimant or its representatives submits that the request was not received by them but by Abbey, it is submitted that pursuant to section 175 of the Consumer Credit Act 1974 Abbey as agents for the claimant would be under a duty to pass on such request and therefore the request remains valid and effective and not complied with by the claimant

 

20. Furthermore the claimant ignored my dispute and pursued an active campaign of harassment against me, they contacted me by telephone on xx/xx/2007,xx/xx/2007 (set out the date and times of calls) and also continued to contact me in writing (again supply copies of letters) This is in direct contravention of the Office of Fair Trading's Guidelines on debt collection

 

 

The Request for Disclosure

 

 

 

21. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. (a copy of the request is attached to this Defence marked IC02)

 

22. The claimants representative responded by claiming that my request for information was an attempt to frustrate proceeding and would not be complied with, this is unreasonable especially given that I have a current dispute with the claimant and its representative as outlined above and that I am Litigant in Person and do not have the legal resources available to me that the claimant has, so it is essential that all details requested are supplied so that I could seek advice and assistance

 

23. I replied to the claimant letter outlined in point 21 but have receive no response

 

Document Retention and the claimants failures

 

 

24. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

25. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

26. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

27. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

28. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

29. Therefore, the defendant contends that claimants failure to preserve the written documents such as the Credit Agreement is a breach of the Acts quoted in points 25-28 and the defendant may seek the permission of the court to disclose such failings to the various enforcement agencies, who deal with such matters should this case go to trial

 

 

The importance of a copy of the credit agreement and its production before the court

 

 

30. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

31. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

32. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

33. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

34. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

35. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

 

36. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

37. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

38. Notwithstanding point 37, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

39. The message to be gleamed here is that the claimant must produce before the court a fully compliant credit agreement, if the agreement can be enforced, but it is requested that the court give consideration to points 17,18 & 19

 

The courts power of enforcement

 

40. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

41. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

42. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

43. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

44. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

45. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit SC 1X) unenforceable.

 

 

 

46. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

47. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

 

Default notice

 

48. it is submitted that the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) See attached exhibit SC1,2,3 etc

 

49. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

50. I refer to the date of the letter as being the xx/xx/2008; it is denied that the Default notice was received on the xx/xx/2008 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

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.

51. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

52. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

53. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(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.

54. The notice fails to include the following statement in the form as shown

 

"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

 

55. Also the notice fails to set out the statement as set out below

 

"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]"

 

 

56. The statements referred to in points 46 & 47 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

57. 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) CCA 1974 which states

(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.

58. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

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

 

 

 

59. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

60. 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 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 default

 

61. The claimants 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 and since the claimant has failed to adhere to statutory procedure it is averred that the claimant does not have a right of action

 

Conclusion

 

62. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute.. The claimant and its representatives have subjected me and my family to a unacceptable level of unwarranted telephone calls and it is averred that such actions amount to harassment and has caused an unacceptable level of distress for my family, especially since they ignored the fact that I had raised a genuine dispute and the claimants response failed in its entirety to comply with the CCA 1974

 

63. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

64. Furthermore I ask the court to consider the claimants behaviour as to bringing this action while in default of Section 78 of the consumer credit Act 1974, it is averred this is an abuse of the court process and it is requested that the court dismiss the claimants claim as such due to their complete disregard for the OFT guidelines on debt collection and the requirements of Statute and Regulations as well as the Civil Procedure Rules

 

65. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

66. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

Signed .....................

 

Date

 

 

 

 

 

right just gotta do the finishing touches Edited by pt2537
amended a few points

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right, i have a few more bits to add so its not finished yet

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