Eversheds/NR - CC Claim Received / DISCONTINUED

[creditcardmug]

Section C

 

Northern Rock -v- xxxxxxxxxxxx

Claim No: xxxxxxx

 

Pre-Action Protocols

 

Section C

 

 

This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the DATE I wrote to the claimant requesting information pursuant to the CPR Part 18, in order that I could investigate their Particulars of Claim, and file a suitable defence. A copy is attached to this form.

The claimant has not replied.

[creditcardmug]

Post again with any questions/comments please

 

Regards

 

CCM

 

PS

 

I have made an important amendment to the directions in post 93, print it again, and bin the other one.

 

( i am now mindful of devious tactics of eversheds, re: other threads)

Edited February 2, 2009 by creditcardmug

[petebeds]

Thanks for that CCM, will get signed and sent SD ASAP (snow permitting!)

 

What about their failure to respond to the CCA Request, which is still in default?

Edited February 3, 2009 by petebeds
Correction

[creditcardmug]

If the judge makes the appropriate directions, and they comply with it, and you get the chance to file a fully particularised defence...then you can throw everything at them:D

[petebeds]

Pack received in the post this morning from Eversheds enclosing a tatty photocopy of the signature page of application form, several pages of statement showing a completely different Account Number, also copies of Default Notices and an application for the Defences to be struck out and Summary Judgement entered. Am scanning and will post copies ASAP.

Edited February 14, 2009 by petebeds
add to text

[petebeds]

The bundle received this morning. I have not posted the statements she refers to (which I can do if necessary) - however the copies bear a completely different account number to that shown on everything else!

 

I have also omitted the header pages stating "Witness Statement of ....."

 

Is it important that the AQs were due back by Monday 9th, yet none of the bundle is dated until Thursday 12th Feb?

 

Where to from here? I note that they have used the same tactic elsewhere.

NR AQ Bundle without statements.pdf

Edited February 14, 2009 by petebeds
additional point

[creditcardmug]

Hmmm....they seem to want it both ways... its a regulated agreement in their POC, so you defend on that basis.....but now its not regulated, and they want your defence struck out:mad:

 

also as you say this was sent after you filed the AQ, and probably before the court sent them a copy.

 

i presume you will now get the chance to object to their Application Notice

[petebeds]

 

also as you say this was sent after you filed the AQ, and probably before the court sent them a copy.

 

i presume you will now get the chance to object to their Application Notice

 

I spoke to the Court on Tuesday and they said that they had received our AQs on the previous Thursday,they were unable to find whether NR had filed theirs by the due date, if they hadn't been received then an Unless Order would be sent out

 

..... so given that they do refer to things in our AQ I'd say at a guess that they're following this thread .......

 

I would hope that we would get the chance to object to their Application, will wait to see what comes in the next few days.

[petebeds]

Been going back through the bundle they have sent:

 

The purported CCA states the words "Regulated by the Consumer Credit Act 1974"

The purported DN states the word "Regulated"

 

How are they now able to claim that it isn't?

 

Or have they been misleading people, deliberately or otherwise?

[toto003]

Been going back through the bundle they have sent:

The purported CCA states the words "Regulated by the Consumer Credit Act 1974"

The purported DN states the word "Regulated"

How are they now able to claim that it isn't?

Or have they been misleading people, deliberately or otherwise?

 

This is only my opinion, but they might be playing into your hands claiming that this is an unregulated agreement.

 

You put a signature inside a box that says

 

This is a Credit Agreement regulated by the Consumer Credit Act 1974, Sign it only if you accept to be legally bound by its terms.

 

Your signature on that form ONLY applies to terms regulated by the CCA 1974 - by implication, you expressly do not agree to any terms "outside" of the act.

 

is above not a valid defence ?

[petebeds]

 

is above not a valid defence ?

 

Well I would hope that the Court might be able to consider that .... I don't know what the procedure now is that they have made the Application, do we get given an opportunity to respond to it? They are asking for the Defences to be Struck Out (but only refer to the "First Defendant's Defence") and Judgement without a Hearing. How do we get to respond or object to the Application or indeed to Judgement if there is to be no Hearing?

 

Maybe this is now opening up a whole new can of worms? As I said, one begins to wonder now if there is not an entirely separate issue here. "The Claimant's computer systems are one of the same for all agreements and it does not therefore have the ability to provide a different Credit Agreement template for agreements that are over £25,000". That strikes me as being either lazy or incompetent at best, deceitful or dishonest at worst or any combination of the foregoing that one might care to string together.

 

Could this, in fact, make any such "agreement" invalid? I know that there is the saying "Caveat Emptor" and also the principle that ignorance of the Law is no defence before the Law, but surely the Courts cannot reasonably expect anybody signing a "Credit Agreement" which they are given to quite reasonably believe is Regulated by the Act to know the minutiae of said Act and its various amendments over the years unless they have specific legal training and detailed knowledge of the Act?

 

One sees those words "Regulated by the Consumer Credit Act" and one is led to believe that both parties are protected by Law.

 

Has this all suddenly stepped up a gear? Anybody aware of any precedent?

[Von Greenbach]

In point 11 of there witness statement it states "The claimant's computer systems are one of the same for all agreements and it does not therefore have the ability to provide a different credit agreement template for agreements over £25.000"

 

Well, if any loan over £25.000 is not covered by a CCA, how come they have the same template letter?

 

It's not your fault they've not put in a computer programme / template letter for loans over £25.000, it's carelessness from a major organisation.

[petebeds]

Whilst having another sleepless - yet strangely productive - night, I have come across this thread:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1924821.html

 

Is anybody else thinking what I'm thinking?

[petebeds]

I have spoken to a very helpful gentleman in the Court Office this afternoon who advises that the bundle from Eversheds hasn't arrived yet. He suggested writing to the Judge to raise any points that we would wish to ask him to consider when looking at the Application, and I have come up with the following:

 

BY SPECIAL DELIVERY

In the Guildford County Court

Northern Rock -v- xxxxxx and yyyyyy

Claim Number: 0000000000

Dear Sir

On Saturday 14th February, we received a bundle from Eversheds, Solicitors to the Claimants above enclosing their Allocation Questionnaire, various items comprising a Witness Statement and Exhibits and an N224 Application for our Defences to be Struck Out and Summary Judgement entered for the Claimants without a Hearing.

As we are litigants in person, we are extremely concerned by this tactic on the part of the Claimant and having spoken to the staff at the Court Office, we have been advised to write this letter to ask that you might kindly give consideration to a number of points which we would like to draw to your attention whilst considering the Application.

First of all, the Claimants are suggesting that any Loan Agreement was not an Agreement Regulated by the Consumer Credit Act, due to its being for a sum in excess of £25,000, the limit for regulated loans at the time the Claimants claim the agreement was signed.

We would like to draw your attention to the Exhibit “LCM1”, where it states in bold, capital letters at the top “CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974”, and further states in the signature box at the bottom “This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.”

The Claimant’s Solicitor, in her Witness Statement has stated that “the Claimant’s computer systems are one of the same for all agreements and it does not therefore have the ability to provide a different Credit Agreement template for agreements that are over £25,000”.

 

We would with the greatest respect to the Court suggest that this comprises a serious failure on the part of the Claimant, in that an agreement apparently falling outside the scope of the Consumer Credit Act 1974 could be drawn up using a template that states in quite clear and unambiguous terms that it is a Regulated Agreement. Advice offered to us informally by friends connected with the legal profession has suggested that this in itself may amount to serious misrepresentation.

At no time until their letter of 2nd September responding to our request under Sections 77/78 of the Consumer Credit Act for a properly executed agreement have the Claimants given any indication whatsoever that the agreement might not be what it seems to be on paper.

We would also kindly ask that you give some consideration to the fact that the original Particulars of Claim state that the claim is for the amount due on an account “being a credit agreement regulated by the Consumer Credit Act 1974”. We would ask you to consider whether the Claimants have therefore deliberately made a false statement in their Particulars of Claim, or whether the Claim has been issued without being checked properly, hoping that we would either fail to respond or admit the Claim. We would ask you to kindly consider whether either of these actions could constitute either a Contempt of Court or an Abuse of Process.

Furthermore, we would like to draw your attention to the Exhibit “LCM2”, a transaction report showing payments into an account. If you would be so kind as to look at the Account Number quoted in the Particulars of Claim and hand written on the top of the Exhibit “LCM1”, you will see that it is different to the Account Number stated on the Exhibit “LCM2”. This is clearly for a different account. Perhaps the Claimants Solicitors are hoping that you will not look too closely, or won’t notice, however we do feel that for them to submit what is clearly the wrong Exhibit, and then attempt to rely on it as Evidence in the making of an Application is nothing less than an insult to the integrity of the Court.

Considering all of these matters, we would therefore respectfully ask that you give consideration to whether our Defences should be allowed to stand and to strike out the Application made by the Claimants.

Yours faithfully,

 

 

Comments please? I want to get this sent off SD ASAP.

 

Thanks

[creditcardmug]

An excellent letter, well done

 

Mark the envelope urgent FAO the county court manager

[petebeds]

Thanks CCM, will get the Ex to sign it tonight and then SD'd tomorrow.

[atwozee]

I’m still laughing at the witness statement – how do they possibly think they can get around this monumental error – the contract is unlawful and you should report them to the OFT – a creditor is committing a serious offence if it purports to be lending money under the protection of the consumer credit act when in fact it isn’t.

You should get as much coverage of this as you can – how many of these dodgy we can’t be bothered to change our template loans have they got out there?

BTW I know they now think that the default notice is irrelevant because they think they shouldn’t actually of sent it (LMFHO) but they didn’t allow you 14 clear days to remedy the breach so it would be invalid anyway – unless they sent it same day delivery of course.

[petebeds]

– the contract is unlawful and you should report them to the OFT – a creditor is committing a serious offence if it purports to be lending money under the protection of the consumer credit act when in fact it isn’t.

 

Can anybody suggest where I can get chapter and verse on this, they need to be hit with it hard, preferably in front of a Judge! Hopefully our letter will help, would it be worth making an Application for the thing to be struck out on the grounds that NR are trying to enforce an unlawful contract?

 

As for a complaint to the OFT, how does this stand with it still being a "live" case? How would I go about making a complaint to them and what would I need to send?

 

BTW I know they now think that the default notice is irrelevant because they think they shouldn’t actually of sent it (LMFHO) but they didn’t allow you 14 clear days to remedy the breach so it would be invalid anyway – unless they sent it same day delivery of course.

 

My understanding is that the 14 days didn't come in until the 2006 Act was phased in, as this purports to be regulated (or not!) under the original 1974 Act, I thought it was 7 days?

Edited February 16, 2009 by petebeds
Correction as got interrupted!

[atwozee]

Can anybody suggest where I can get chapter and verse on this, they need to be hit with it hard, preferably in front of a Judge! Hopefully our letter will help, would it be worth making an Application for the thing to be struck out on the grounds that NR are trying to enforce an unlawful contract?

 

As for a complaint to the OFT, how does this stand with it still being a "live" case? How would I go about making a complaint to them and what would I need to send?

 

 

 

My understanding is that the 14 days didn't come in until the 2006 Act was phased in, as this purports to be regulated (or not!) under the original 1974 Act, I thought it was 7 days?

 

The timeframe depends on when they issued the DN – in your case it’s dated 27/11/2007 and they give you until 05/12/2007 – the regulations changed in 2006 so that any DN issued after that time must allow 14 clear days to remedy – it doesn’t matter when the agreement was signed – it’s when they issue the DN that matters.

I’m not sure where you would get confirmation of the unlawfulness of the agreement – maybe the OFT themselves could clarify – you would also have an argument for restitution of payments made under a mistaken obligation – this is why I think they are mad to even take you to court – once the contract gets judged to be unlawful (not just unenforceable) you could argue that payments were made under a mistaken obligation with regards to a lawful contract.

[petebeds]

The "Default Notice" is actually dated 21/11/07, not 27/11, the 14th day after that is the 5/12/07. Is that 14 clear days? Allowing 2 days for posting each side? However they have not provided any proof that it was served, only a copy of what they say they've sent ..... leaving aside the fact that they appear to be making a complete balls-up of the rest of it all .... but lets not allow ourselves to get side-tracked here, the DN appears on the face of it to be as irrelevant as the original agreement.

 

So,

 

Unlawful Contract leading to a mistaken obligation?

Restitution of payments made under a mistaken obligation?

Harrassment in trying to enforce an unlawful contract?

 

Anybody know of a previous case that could be quoted?

 

Before I go in with the final broadside I want to be sure I don't end up looking as silly as Eversheds and NR. I'll put a call in to the OFT in the morning, see what they say.

[atwozee]

My mistake – it is the 21/11/2007 but that is 14 days exactly – so no allowance has been made for posting.

Bit of bedtime reading regarding restitution

http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1998/38.html&query=title+(+Kleinwort+)+and+title+(+Benson+)+and+title+(+Ltd+)+and+title+(+v+)+and+title+(+Lincoln+)+and+title+(+City+)+and+title+(+Council+)&method=boolean

[petebeds]

Letter has gone to the Court, I am also preparing an N244 Application to have:

 

The Claimant's Application Struck Out

The Claim Struck Out on the grounds that the Contract is unlawful

Repayment of any and all monies paid by the Defendant to the Claimant under a mistaken obligation of an unlawful contract, plus statutory interest.

 

How should I word all of this?

 

Thanks

[atwozee]

This snippet of case law should support your claim –

Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192

Lord Denning said:

Nor is it correct to say that money paid under a mistake of law can

never be recovered back. The true proposition is that money paid

under a mistake of law, by itself and without more, cannot be

recovered back. ... If there is something more in addition to a mistake

of law - if there is something in the defendant’s conduct which shows

that, of the two of them, he is the one primarily responsible for the

mistake - then it may be recovered back. Thus, if as between the two

of them the duty of observing the law is placed on the shoulders of the

one rather than the other - it being imposed on him specially for the

protection of the other - then they are not in pari delicto and the money

can be recovered back.

There can be no doubt that Northern Rock (mistake on their part or not) are guilty of misrepresenting an agreement as something that it isn’t – they now admit that the agreement isn’t regulated under the CCA 1974 effectively attempting to remove the consumer protection the act gave you - when you signed it you signed it on the condition that it was regulated and you were protected - they cannot escape this material point.

The agreement should be viewed as a regulated agreement because that is what you thought you were signing and therefore it would be an unlawful agreement because the amount of loan exceeded the £25k limit imposed by regulations at the time the loan was signed.

Here’s a link outlining the change from £15k to £25k

http://www.opsi.gov.uk/si/si1998/19980996.htm

I think that is the crux of the matter which you need to outline in your application.

I think you also need to get this confirmed by the OFT as soon as possible – in fact they might want to look into this a bit deeper because the creditor has acted outside of clear guidelines and regulations.

[atwozee]

BTW – if a judge rules that the agreement is a regulated agreement even though the financial limit has been exceeded then everything relating to the agreement becomes relevant – so invalid DN – and prescribed term ‘repayment’ is missing (unless you have blanked the instalment amount) – so it would still be unenforceable under s127(3)

You just need to be prepared to argue that side of things IMO.

[petebeds]

Thanks Atwozee, just waiting on a callback from the OFT.

 

If the Judge does rule that it is a Regulated Agreement even though the financial limit has been exceeded, the Application they've made should fail - they are asking for Judgement on the basis that it isn't a Regulated Agreement and therefore our Defences have no foundation, if it IS in fact a Regulated Agreement therefore the Defences should be allowed to stand, in my humble view.

 

Prescribed term "Repayment" they might argue is covered by the statement "Monthly payments:

(a) Amount: During the Fixed Rate Peroid and otherwise such equal (or as nearly equal as possible) amount calculated by us and notified to you in writing from time to time ......."

 

An instalment amount is not shown on the agreement.