Lloyds v Me

[steven4064]

For reference from post #90

Hi all,

 

Received from the Court today:

 

It is ordered that

 

1. Judgment set aside.

 

2. The Claimant do file at Court and serve upon the Defendant a fully paricularised Particulars of Claim by 4:00pm on 27 November 2008.

 

3. The Defendant do file at Court and serve upon the Claimant a fully particularised Defence by 4:00 on 31 December 2008.

 

4. If a Defence is filed the parties are to complete and file Allocation Questionnaires.

 

5. No Order as to the costs of today.

 

Any comments please.

 

V

In section G - write "I resectfully request that the claimant's statement of case be struck out pursuant to CPR 3.4 (2) © as they have failed to comply with the court order dated xxxxxx by the 27 November or at all.

 

If the court is not minded to strike out the claimant's statement of case I respectfully request that special directions be made as per the attached draft order. This order will further the Over-riding Objective by causing the claimant to produce information that will clarify the facts of this case and enable the case to proceed justly and expeditiously.

 

CPR Practice Direction 16 requires that, for a case based on a written agreement (as is this case), that a copy of the agreement should be attached to the particulars of claim and the original of the agreement should be available in court. Further, the Consumer Credit Act 1974 and the associated regulations issued by the Secretary of State require that such agreement should comply with certain minimum requirements otherwise the court's power of enforcement is taken away.

 

Simailarly, the CCA 1974and associated regulations require that a Default Notice in the prescribed form should be issued by the creditor. Without showing that such a notice wassent to the defendant, the claimant has no cause of action.

 

The defendant believes that, if the claimant has a serious intention of pursuing this case at trial, then it is incumbent on it to disclose the relevant agreement and show proof of sending a Default Notice in the prescribed form.

 

What about that?

 

The draft diections then should just require within 14 days the production of a copy of the actual agreement and proof that DN was sent.

[Viano]

Well worded, and thanks for your help.

 

Viano

[Viano]

Update.

 

They have requested a 1 (one) month stay "in order to try and agree a settlement with you".

 

Did they blink? Is this good news?

 

V

[Viano]

Hi All,

 

I'm back again. I,m in court in five weeks and am trying to see the wood for the trees, and am looking for help again.

 

Questions.

 

1) Should I have received anything regarding a Disclosure by List.

 

2) Should I have made a Witness Statement, if so when.

 

3) When should I issue, if that's the right term, a 31.14.

 

4) Do I recall that a Judge some time ago decreed that if an agreement was unexecuted the outstanding alleged debt would be viewed as a gift by the "creditor", if so where can I find this info?

 

Viano

[creditcardmug]

Hi, it may be this youre looking for

 

Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

[Viano]

Thanks CCM, that's it, just the ticket.

 

Viano

[Viano]

Hi All,

 

Can anyone help please with my questions 1-3 in post 129ish as I feel as though I'm running out of time.

 

Thanks

 

Viano

[Viano]

Or where I can find this info.

 

Ta!

[steven4064]

Hi All,

 

I'm back again. I,m in court in five weeks and am trying to see the wood for the trees, and am looking for help again.

 

Questions.

 

1) Should I have received anything regarding a Disclosure by List.

 

2) Should I have made a Witness Statement, if so when.

 

3) When should I issue, if that's the right term, a 31.14.

 

4) Do I recall that a Judge some time ago decreed that if an agreement was unexecuted the outstanding alleged debt would be viewed as a gift by the "creditor", if so where can I find this info?

 

Viano

1. Yes probably. If not, write and ask them for a list of all the documents they intend to rely on in court under CPR Part 31.14 (

 

2. You will need to do a witness statement and you shoul plan tto serve it and file it (ie send it to the other side and to court) two weeks before the hearing so you have 3 weeks

 

3. see 1

 

4. Yes that's in Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

Wilson v FCT is an important case and will probably figure a lot in your witness statement. Look for a standard pt2537 defence and it will all be laid out there.

[Viano]

Hi Steven and thanks, court is only 4 weeks away now (first Thursday in June).

 

Is there a standard request for the 31.14 or do I 'just ask'?

 

I'm sorry to seem naive, but this is a bit different to the last time-in some ways the others were a bit more "professional" and it was more clear cut.

 

Regards

 

V

[steven4064]

Just ask but I would head the letter "Me - v - Lloyds, Case Number xxxxxx" and "Request under CPR Part 31.14"

[Viano]

Thanks

[Viano]

Hi all,

 

More questions re Default Notice.

 

The original claim was for a different card, the PoC's were ammended. In their reply to my defence they claim they sent me a DN (August 2007) I have not received a DN. They claim that that DN was compliant! They say that 'The Claimants systems are unable to produce an exact copy'. It also goes on to say ' It is inappropriate and and not in accordance with the Overriding Objective to seek to put the Claimant to in order to avoid repaying the debt by way of technical objections'

 

Now! baring the above in mind, what the devil do I do?

 

How important is a DN in the Court Room, how am I supposed to know if the DN is compliant if I haven't had one and they can't/won't supply a copy.

 

Urgent help & clarification needed

 

V

[steven4064]

You could reply that "it is not in accordance with the Overriding Objective for the Claimant to seek to enforce an alleged agreement when they have not complied with the basic requirements of the Consumer Credit Act that would enable them to do so" - the law says they cannot enforce a debt without a valid DN. It is quite within your rights to keep on demanding that they prove they sent one. If their systems are so shambolic that they cannot keep such basic records, you have to ask why they are in business at all.

[Viano]

Humour me please, where can I find the bit about no copy of DN & what happens in Court if no copy of DN is produced.

 

I quote from their reply to my defence:

 

i It is denied that the Claimant failed to issue a Default Notice.

 

ii The records of the Claimant record that a Default Notice was sent to the Defendant on ** *** 2007.

 

iii It is denied that proof of receipt and/or delivery of the Default Notice

is required the Claimant served such a notice in accordance with the act

by addressing it to the Defendant. It is averred that notwithstanding

that postage alone constitutes service.

 

Your comments please

 

V

[steven4064]

THey do not have to produce a copy but they do have to have sent one. You should reply and ask to inspect the their records where it shows they posted a DN under CPR part 31.

 

They are right that postage constitutes service.

[Viano]

I have sent a 31.14 request, is it included in that.

 

Surely they should have a copy of such an important document, especially since the original claim was for a different card!, we are working on an ammended claim, so in effect I don't know what the DN (if any) applies to.

 

I understand that postage constitutes service, but for clarity sake they must have proof of posting of a DN, otherwise it is just their say so.

 

V

[Viano]

Just re-read the first line, what I meant to have said is that I have requested a Copy of the DN, should the requst to view be included in that?

[steven4064]

CPR Part 31 is to do with inspection:

Documents referred to in statements of case etc.

31.14 (1) A party may inspect a document mentioned in –

(a) a statement of case;

 

(b) a witness statement;

 

© a witness summary; or

 

(d) an affidavit

[Viano]

Thanks Steven,

 

I have asked for that in my request.

 

So, if they don't have it or proof of it ......

 

V

[42man]

Just posting this up courtesy of The Shadow

 

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

 

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

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

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

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

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

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

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

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

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

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

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

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

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

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

 

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

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

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

 

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

 

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

 

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

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

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

 

(e) to enforce any security.

 

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

 

Section 88. Contents and effect of Default Notice

 

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

 

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

 

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

 

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

 

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

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

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

 

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

[Viano]

Thanks for that, I will read and inwardly digest.

 

Are they not obliged to retain copies of such important documents?

 

V

[steven4064]

Are they not obliged to retain copies of such important documents?

Apparantly not

[Viano]

Could I then say I've paid, but have no proof and, if they haven't received it hard cheese- I wish

 

V

[Viano]

Hi All,

 

What happens at an Allocation hearing, and what do I have to take please.

 

V