StayingCalm vs Abbey with no CCA**WON**

[pt2537]

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

[pt2537]

Hi SC,

 

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

[pt2537]

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

[pt2537]

Hi SC, im working on the defence now

 

just wanted to let you know

[pt2537]

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 May 26, 2008 by pt2537
amended a few points

[pt2537]

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

[pt2537]

Hi Paul

Thanks so very very much. Not been able to study it all fully yet, that will take quite a while, but it looks brilliant:)

 

When the site went down this evening I really started to panic.

 

Two points I have noted so far

 

As the court is Northampton CCBC is 3 b & c applicable.YES most definatley,they should not IMHO have issued using the CCBC as this is a consumer credit claim they should in the interests of fairness supplied a copy of the agreement with the claim form

 

Although I had not mentioned it in my thread I first disputed this agreement with Abbey in Sept 07. Only on finding this site in February 08 did I follow the correct procedures. Not sure if this should be included in para 8.well that something for you to consider adding

 

just one thing , you need to go through the defence and put in where it says Exhibit SC you need to change that to your initials and the exhibits MUST run in order, so Exhibit 1 the 2 then 3 and so on and so on

 

also i would attach a photo copy of each letter you have sent with the defence to show your arguement is correct

[pt2537]

ive just amended point 65, i put the wrong article on the Human Rights Act 1998 so if youve already printed it out you need to check it

[pt2537]

Youre welcome,

 

i hope it helps

 

thats absolutley fine, i will be around in the morning for a while so ask away

[pt2537]

Hi Paul

 

You say send copies of all my letters. Do these all have to be mentioned in the defence and labelled as exhibits’?

 

Same with their harassment letters to me

 

Also should I include my letters to Restons and their letters

 

45 they have not supplied anything so should I put purported agreement Ah change that to "declare the agreement unenforceable".

 

 

48 what exhibits do I need here, Attach a copy of the Default notice

 

55 should both DO and NOT be in caps and underlined, as all Default Notices that I have seen only seem to have the NOT in caps and underlined Yes it is a requirement of the regulations that they are presented in the form within the regulations with no variations, the defence shows exactly how it should look

 

Should i include reserve right to amend defence if they supply further details yes

 

Default balance includes penalty charges, should this be mentioned.

 

ive answered as much as i can, ive gotta go out so i will be back in a while

[pt2537]

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

 

 

 

 

 

i have highlighted the salient points

 

it is saying the default they sent you is rubbish as it is non compliant

[pt2537]

UPDATE

 

My Defence was posted Spec Delivery on Tuesday and was received and processed on Wed 28th as confirmed by MCOL.

 

Yesterday i received this letter from the Court Manager:

 

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

 

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

 

Not sure exactly what this means. Nothing about ordering the claimant to supply any documents. Could anyone please explain the implications.

 

Many thanks

sc

nothing to worry about

 

it is quite normal, what has happened is that the defence has now been sent to the claimant, they will now consider if they wish to proceed or not

 

iti s highly likely that, depending on how switched on their solicitors are, they will decide their ass is gonna get a real whoooopin and discontinue, but nothing is certain at this stage.

 

its a waiting game from here on

 

after 33 days have passed, i would give the court a call, and ask what is happening

[pt2537]

right, ok, you need to put together disclosure by list,

 

Hmm, there is a tread that you could use as i am not around at the moment save for this reply

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-6.html#post1347693

 

Post 103 gives you an idea of what is required

 

Basically its a list of documents that you have in your possession

 

you need to send this to the other side by the 20th

 

I hope this offers some help

 

Regards

 

Paul

[pt2537]

u could ask the courts to demand they comply with ur cpr request.

 

Unlikely to succeed IMHO, especially given the directions ordered and the consequences of failure mean they cannot rely on anything not disclosed by the 20th

 

here is the form you will need for the disclosure statement

 

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n265_1005.pdf

[pt2537]

ok just an idea.

Erm, may i ask why? when there is clearly an order that

 

A) requires disclosure of documents which they will rely

 

and

 

B) if they fail to disclose then they cannot rely upon undisclosed docs in court

 

that is exactley the order that you are suggesting that SC ask for as i read it GM and there is no need as the order has been granted:confused:

 

im confused??????

[pt2537]

Well if u look on page one a CPR request was put in any they refused as the CPR request came off the interent and they said the request would not be valid anyway.

 

And i was thinking charges that have been applied to the account my not be valid due to the CCA not being available but them basing the whole case on it.

Oh ok, its just that as i said before they have to disclose everything now anyway so any application in this case would be likely to fail for that reason

 

i see why you would have thought it would be a good idea though

[pt2537]

Do you have the Crowther Committee report on consumer credit?

 

if you do great but if you dont then you will be in trouble when they say "OK Can we have a copy as you have disclosed it"

 

you can only disclose docs in your possession

 

 

I can help you with the case laws etc but i do not have the Crowther report

[pt2537]

PT

 

would this be it?

CONSUMER CREDIT: THE CROWTHER REPORT (Hansard, 28 June 1972)

Hi,

 

Nope sorry but its not the Crowther report

 

there was a copy on Ebay the other day, the only copy close to it i could find is this Consumer Credit report of Crowther Commitee Vol 2 on eBay, also, Non-Fiction Books, Books, Comics Magazines (end time 03-Sep-08 15:20:15 BST)

[pt2537]

Hi there

 

IT all depends upon if the other side asks for a copy, if they dont then you will only need them for the hearing if it gets that far,

 

 

but if they do ask for a copy then you are duty bound to supply it

 

the same goes the other way though and if you do not receive their disclosure by list statement and the court form which i posted above from the abbey then they are in trouble

[pt2537]

Officially, no but its always a good idea to disclose everything, because peeps are litigants in person it doesnt matter toooo much

[pt2537]

to answer the question, yes, it is what the judge ordered

[pt2537]

The OFT carried out an investigation into Credit Card Charges and this was done in document called

 

OFT's action on credit card default charges

5 April 2006

 

and can be found here http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

 

i hope this helps

 

Regards

 

Paul

[pt2537]

 

 

I am not sure the aspects pleaded regarding the alleged failure to include in the default notice the words: "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 and 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], was correct. The default notice does include these words.

 

not often that i do disagree with you x20 but here i must,

 

it is clear from the wording of the Act and furthermore the regulations (Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)) that the wording must be reproduced in the form as laid out in the regs, and furthermore it is clear that no exceptions are permitted.

 

there is case law supporting this and furthermore Halsburys Laws and Guest & lloyd and Goode CCLAP all concur that it is not de minimis for the underlining of key words to be left out of a default notice and if that is the case that the words are left out, the notice is defective

 

I dont mean to correct you but this is something i have pleaded successfully many times

[pt2537]

Hi PT, I'm always happy to be corrected epecially online where you can't see how red-faced I go.

 

Any way, the best bit of all is I agree with what you say is the law. It was just that as I studied the default notice which StayingCalm received, I thought it did say the right words with the right underlining and in the right order and so on. I must have missed something.

 

Cheers

 

x20

Hi x20

 

Ah i see what your saying,

 

its actually interesting as my copy of the Regs in the hard copy form has the words in bold and underlined, but the copy on Lexis doesnt

 

quite confusing isnt it

 

law eh, great fun

 

regards

 

Paul

[pt2537]

a default notice must give you no less than 14 days , clear days, to remedy the default before the creditor can become entitled to terminate the agreement