Eversheds/NR - CC Claim Received / DISCONTINUED

[AndyOrch]

Ok thats fine I just have to ask the questions to get some background to enable to draft a defence which contains some credibility/common sense.

I just want to be absolutely clear with you that defending a Court claim is by no means an easy option. I'm not saying this with the intention of trying to persuade you to throw in the towel, (that's never something I would suggest) but if you are getting jittery and restless because you haven't had any responses, then going through the process of a Court claim will drive you mad! Nothing happens quickly once litigation is underway, so you either have to accept that things will move slowly and will not be resolved immediately or give up. If you're debt is over £5000, then you're looking at 6 months before the matter is concluded, assuming nothing happens during proceedings to prolong the case.

 

Simply view this a project you are undertaking, and that you are going to learn a great deal on this journey. Accept the fact that this matter has to be dealt with and that the best way of dealing with it is to defend and see the case through. Don't make a decision in haste, that you will spend the next 6 years regretting!

 

 

Regards

 

Andy

[AndyOrch]

BTW, am I right in thinking that the default notice should start with the words "Important you must read this carefully" or some such wording?

 

 

Yes that is correct

 

 

 

Andy

[creditcardmug]

This might help re the DN.

 

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.

36. 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

 

37. 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]"

[AndyOrch]

Hi Thanks CCM

 

Ok your claim is not MCOL so as CCM states you need to get your Defence off by Friday latest special delivery.If you can remind me was it one summons two names or two seperate summons same claim number.

 

Regards

 

Andy;)

[petebeds]

Yes that is correct

 

 

 

Andy

 

It doesn't say that! So the default notice is therefore defective?

 

I'm also a bit confused by creditcardmug's post re the two statements; in both cases the statements are in capitals and bold with "before the date shown" underlined ... the only bit there I can see that doesn't comply with the regulations is the "do not" not being underlined.

 

Andy - I'm quite prepared for this to take as long as it needs to - they want us to roll over and give them a judgement by default, but my view is to make the b*****s work for it! Its the principle of the thing, if more people were prepared to defend they'd soon stop issuing these claims like confetti because the system would get so clogged up it would break. Then people might have more chance of getting things like IVAs agreed where appropriate and NR wouldn't have got itself into the mess its now in as people were forced into Bankruptcy and NR end up getting very little or nothing out of it.

 

I realise that we're in for a long haul, but I'm not one to give up without a fight. NR should have been a bit more reasonable in our earlier dealings and negotiations.

 

Pete

[petebeds]

Hi Thanks CCM

 

Ok your claim is not MCOL so as CCM states you need to get your Defence off by Friday latest special delivery.If you can remind me was it one summons two names or two seperate summons same claim number.

 

Regards

 

Andy;)

 

One claim number, two separate but identical summons each with both names on.

[petebeds]

Well I'm starting to get cabin fever here so I think a nice day out to drive down to Guildford to hand deliver the defences on either Friday or Tuesday might well be in order ...

[AndyOrch]

It doesn't say that! So the default notice is therefore defective?

 

I'm also a bit confused by creditcardmug's post re the two statements; in both cases the statements are in capitals and bold with "before the date shown" underlined ... the only bit there I can see that doesn't comply with the regulations is the "do not" not being underlined. As I said marginal but still wrong this will be refuted

 

Andy - I'm quite prepared for this to take as long as it needs to - they want us to roll over and give them a judgement by default, but my view is to make the b*****s work for it! Its the principle of the thing, if more people were prepared to defend they'd soon stop issuing these claims like confetti because the system would get so clogged up it would break. Then people might have more chance of getting things like IVAs agreed where appropriate and NR wouldn't have got itself into the mess its now in as people were forced into Bankruptcy and NR end up getting very little or nothing out of it. Absolutly

 

I realise that we're in for a long haul, but I'm not one to give up without a fight. NR should have been a bit more reasonable in our earlier dealings and negotiations.

 

Pete

 

The best we can do is put your case forward as openly and honestly as possable.They are aware you were having difficuilties and disregarded that fact.You have tried to reason a fair payment throughout the DMPand they have commenced litigation which is their prerogative in the matter

The reality is however, if you are not making normal payments to an account be it P/loan or C/Card, at some point in time, a Court claim will be filed. These Companies as everyone knows, play rough, so why anyone would assume that they will be allowed to continue making nominal payments forever and a day, with the Bank's blessing, when and if they know you own a property is beyond me. More and more people are getting into difficulties with loans and credit cards, so the worse the situation gets, the more aggressive the banks and credit card Companies will become in enforcing debts. NR are prob savvier than most and you only have to look at the detail in their P.O.C, hence the need to file via Guildford

 

With regards to unsecured loan it’s not unusual for these companies to apply the full amount of interest from the drawdown after breach to the default. Any rebate would have been reflected in your Formal Demand. Giving you the option of early settlement or rectify the breach. Companies feel they have the right to include the full term of interest encompassed by the agreement when litigation is commenced Whether it is questionable/arguable You must refer to the terms and conditions of your agreement,unfortunatly you dont have. which as I have said previously NR are quite litigious and would have no doubt, reserved the right to argue this vis a vis the agreement.

 

Unfortunately due to recent climate and the credit crunch latest trends of turning non secured into secured loans via a charging order on ones property, will become the norm with monies of this value.(not in your case I appreciate but may go for an attachment of earnings if either are in full time employment)

 

As far as I'm concerned, if you know how to deal with these situations to achieve the best possible outcome from day one, you stand a much better chance of getting rid of or stabilizing debts to an affordable amount and moving on with your life. This has to be preferable to finding yourself living with the constant uncertainty regarding what the creditor might do next, and unable to plan for any sort of future for you and your family

 

We hope to achieve an amicable outcome with your case I no doubt trust that everything possible will be scrutinized with an endeavour to finalize the best outcome with your defence. Yes there is the inclusion of the Invalid Default note where you are challenging the legality of a Default Notice due to penalty charges being included in the amount that was claimed, said Notice therefore being legally unenforceable and would also be grounds for securing a stay, as it comes back to the legality or otherwise of penalty charges, which has yet to be established, which in turn could provide you with valuable breathing space in your case. With view to the Agreement or lack of it does not stop you implying it is not with intent to argue its validity. Proof rests with the claimant.

As I have stated before, Litigation involves mind games and serves no purpose in giving your opponents the heads up.

 

Fighting back takes courage, but it's a lot easier than you might think. If some people have opted to write to creditors and challenge what they're doing, this shows a determination to fight. A Court claim is no different, When ever you are questioning/challenging someone else's point of view, you are making an argument, so there's nothing to stop you doing this in front of a Judge, if you have to. Securing the best outcome and stopping them from gaining Summery Judgement, which lets face it is what they are out to achieve, to get their first foot on the ladder to gaining said Charging Order. If you had not intended to defend you would have allowed the above to be much more easily attainable.

 

Regards

 

Andy

Edited August 20, 2008 by Andyorch

[petebeds]

Andy thanks for your help and advice so far.

 

I am conscious that if I am going to get the holding defences sent off SD tomorrow then the only opportunity I am going to have to get the ex to sign one copy is going to be this evening. Is there a template one somewhere that I can use?

[creditcardmug]

Hi you dont sign the defence just type your name, the thing you sign is the N9b which came in the pack, where it says defence put "my defence is attached to this form"

[AndyOrch]

Hi there

 

I will draft your defence today for you and you can check /amend before submission.I am rather busy at the moment so it will be later if not this evening.Try to be on line and check frequently to see if i need any further information.

 

Regrds

 

Andy;)

[AndyOrch]

Just bumping your P.O.C up if you get chance to save me time what date did you:-

 

Send CPR 18 Request Spec Delivery?

Send CCA request Spec Delivery?

 

Who are the Claimants on the summons?

 

 

1. Default Notice never received by me or the co-defendant

2. Copy of the CCA not enclosed with the claim pack

3. Copy of the Default Notice not enclosed with the claim pack

 

"I will post a copy of the N1 CPC when I get access to my scanner again but it reads as follows:

 

"The Claimant's claim is for the sum of 31202.30 being the amount due on account ref XXXXXX-XXXXX being a credit agreement regulated by the Consumer Credit Act 1974.

 

A Consumer Credit Default Notice has been served by post on the Defendant and has not been complied with

Interest continues to accrue on the amount due at the contractual rate stipulated in the credit agreement.

**CONTACT TELEPHONE NUMBER 029 2047 7675**"

 

 

Regards

 

 

Andy;)

[petebeds]

Andy -

 

CPR18 Request sent SD on 4th August, received on 5th August

CCA Request sent SD on 12 August, received on 13 August.

 

Claimant on the form is Northern Rock plc plus a reference number

 

Am online most of the day.

 

Thanks

[petebeds]

Just so that I can have everything ready to send in the bundle to the Court, do I need to attach copies of the CPR18 letters and proof of delivery to the Defence?

[creditcardmug]

Depends how andy words the defence , where it says for instance "attached to this defence marked EXHIB1" , you would mark the copy like so and attach it, so i would have copies of eveything standing by just in case.

[AndyOrch]

Hi

 

Yes attach anything I make reference to and mark it within the defence.In this case it will only be CCA/CPR18./Eversheds response

Did you ever recieve any LBA from eversheds re litigation?

Did the P.O.C make reference to an account number or have you concealed it?

 

 

Regards

 

 

Andy

Edited August 21, 2008 by Andyorch
addition

[petebeds]

Account Number has been concealed on the copy of the POC I posted.

 

The only previous contact from Eversheds was the attached which was responded to by both of us by email stating that we were dealing through the CCCS. Whether this counts as a Letter Before Action or not I don't know.

Eversheds FD Letter.pdf

[AndyOrch]

OK yes thats the LBA was that posted to both of you seperate addresses?

 

 

 

Andy

[petebeds]

Yes, separate addresses.

[AndyOrch]

Ok thats fine for now

 

Last question I promise before leaving you in peace are you aware of any penalty charges within the account and im sure there must be some after 4 years?

Also you or your ex are quite sure you never recieved a default notice?I think your defence will have to based on this as the cornerstone.

 

 

Regards

 

Andy

[petebeds]

I am aware of at least one charge of £100 for "Debt Counselling", up until about September last year the thing was always paid bang on time so there shouldn't have been any penalty charges!

 

Since the original post I did find the "default notice" that was sent in November - we had a debate on its validity yesterday! The ex has no recollection of ever having received one though.

[AndyOrch]

Ok thats fine will get back to you later with the defence.

 

 

 

Andy;)

[AndyOrch]

In ..........County Court

 

[Claim number………….

 

 

 

 

 

 

NR- Claimant

 

 

 

 

V

 

 

 

 

MR/MRS Petebeds - Defendant

 

 

 

The Defendant denies that He/She is liable to the Claimant as alleged in the Particulars of Claim. The defendant is unable to plead effectively or at all. It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970

A copy of the purported written agreement 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.

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.

 

Regarding that which is denied, on the 12th August 2008, a request was made under section 77, fixed credit account, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent via Special delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the 13th August 2008. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. To this date at the time of preparing my Defence,The Claimants have failed to produce a credit agreement to substantiate their claim that monies are owed under a regulated credit agreement. Therefore I do not acknowledge that any debt is owed to The Claimant. * marked as enclosure*

Regarding that which is denied, on 4th August 2008 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. * marked as enclosure *

 

To Date the claimant has failed to comply with my request under the CPR and I have not received such documentation.This was received on the 5th August 2008 and I enclose a copy of the Claimants Solicitors response to the above mentioned CPR 18 request As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person. * marked as enclosure *

Notwithstanding the matters pleaded above, the claimant must under section 87(1)also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

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 with its prescribed format and include an accurate figure required to remedy any such breach. In respect of the figures claimed, it is averred that the sums claimed contain charges which are unfair within the meaning given in the Unfair Terms in Consumer Contract Regulations 1999 and it is further averred that the charges levied are punitive in nature and are penalty charges

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)

 

 

 

Regarding that which is denied, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4

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.

 

If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case cannot 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

 

 

In addition, should it be 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 is alleged to have commenced on xx/xx/xxx

Consumer Credit Act 1974 is the relevant act in this case.

 

 

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to a personal loan which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons

 

 

 

 

 

Statement of Truth

 

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

 

 

Signed …………………

 

 

Date

 

 

* two copies one for Mr & Mrs dont sign print name.

 

 

 

 

 

I trust the above is ok for you

 

 

 

Regards

 

Andy;)

 

 

 

 

 

 

 

 

 

 

[petebeds]

Andy, many many thanks for all your hard work on this, I will keep you posted as to the outcome and proceedings!

 

Also a small contribution to the Group will be forthcoming once I get my redundancy payment next week!!

[AndyOrch]

Hi

 

Your very welcome all donations are very welcome towards the upkeep of this fantastic site

 

 

I wish you well with your submission

 

 

Regards

 

Andy;)