please can you help, ive received a letter i dont understand

[42man]

Write this in the defence too....this is HIGH court law which a lower court should abide by....

 

THE IMPORTANCE OF THE CREDIT AGREEMENT

 

You will not doubt be aware of the cases of London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul), Dimond v. Lovell - [2000] Q.B. 216, Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299,McGinn and Grange Wood securities [2002] EWCA Civ 522, Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch), these cases support the view that without a copy of the credit agreement containing the prescribed terms per schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 (SI1983 / 1553) bearing the signature of the debtor per S 61 Consumer Credit Act 1974 the agreement is rendered unenforceable even by a court

 

Now if it is your contention that the Consumer Credit Act 2006 repeals the unenforceable sections of the 1974 Act, I must draw your attention to schedule 3 section 11 of the Consumer Credit Act 2006

Consumer Credit Act 2006 (c. 14) - Statute Law Database which states as below

 

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.

 

 

 

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

 

I have copies of all the cases I have referred to and also hold copies of the Regulations as well, I gracefully request that notice is taken of the case authorities I cited as I cannot see how a judge in a county court over rule the decisions of the Court of Appeal and the House of Lords which are clearly relevant in this case

 

I quote from Para 28,29,30,73 of Lord Nichols of Birkenhead’s judgment in Wilson and FCT

 

28……………..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 side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement.

 

 

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 rights 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 cases 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.

 

So it is clear from Wilson and FCT alone that without the agreement, their claim is fundamentally flawed

 

THE IMPORTANCE OF A DEFAULT NOTICE IN THE PRESCRIBED FORMAT

 

• I have never received a Statutory Notice of Default. It is denied that any such Notice was received and I put the Claimant to strict proof that such documentation was served
  

• Notwithstanding I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. 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)
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)
  

EXCESSIVE CHARGES

 

13. The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, the claimant has charged an amount that is not proportionate to the amount of any payment not made.

14. Further, or in the alternative, the claimant’s charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963).

THE PERFECTION OF THE ASSIGNMENT

1 - I have never seen any notices of assignment

2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

3 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

 

 

Reasons to object to the bankruptcy petition include but are not limited to: (i've highlighted yours)

 

dispute of ownership of debt,

 

unenforceability of debt due to failure to comply with proscribed terms under CCA1974,

 

dispute of liability for the debt (e.g. where the debt has not had a judgement lodged against it),

 

dispute of the amount specified for the debt (i.e. due to unfair penalty charges etc),

 

failure to produce a properly drafted default notice or termination notice,

 

dispute of the facts relating to the default (e.g. that the default did not happen, or that the default was as a result of failure to comply with a term that of the contract that is unfair under the Unfair Terms and Conditions in Contract regs),

 

failure to serve a notice of assignment of the debt (if not an original creditor) ,

 

failure to consider an offer that would be likely to be greater than that realised under bankruptcy regulations,

 

failure to supply a copy of a credit agreement as required under CCA 1974,

 

debt being an extortionate credit bargain

Edited August 8, 2008 by 42man

[42man]

Fill out the details, and get it sworn either in front of the court (FREE) or at a solicitors office (usually costs £5)....the affadavit has to be with the opposing solicitor and with the court 7 days before the hearing....

 

TRY and read through what is being said here....

 

AFFIDAVIT

I (name) of (address), (occupation)

MAKE OATH and say as follows:

The claim is in relation to a credit agreement that is regulated by the Consumer Credit Act 1974.

.

On XX May 2008, I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974.

The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit X & X

For clarity, section 78(1) of the Consumer Credit Act 1974 states

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

 

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

 

(a)the state of the account, and

 

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

 

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

Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

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

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

It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to above.

THE IMPORTANCE OF THE CREDIT AGREEMENT

 

You will not doubt be aware of the cases of London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul), Dimond v. Lovell - [2000] Q.B. 216, Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299,McGinn and Grange Wood securities [2002] EWCA Civ 522, Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch), these cases support the view that without a copy of the credit agreement containing the prescribed terms per schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 (SI1983 / 1553) bearing the signature of the debtor per S 61 Consumer Credit Act 1974 the agreement is rendered unenforceable even by a court

 

Now if it is your contention that the Consumer Credit Act 2006 repeals the unenforceable sections of the 1974 Act, I must draw your attention to schedule 3 section 11 of the Consumer Credit Act 2006

Consumer Credit Act 2006 (c. 14) - Statute Law Database which states as below

 

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.

 

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

 

I have copies of all the cases I have referred to and also hold copies of the Regulations as well, I gracefully request that notice is taken of the case authorities I cited as I cannot see how a judge in a county court over rule the decisions of the Court of Appeal and the House of Lords which are clearly relevant in this case

 

I quote from Para 28,29,30,73 of Lord Nichols of Birkenhead’s judgment in Wilson and FCT

 

28……………..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 side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement.

 

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 rights 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 cases 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.

 

So it is clear from Wilson and FCT alone that without the agreement, their claim is fundamentally flawed

 

THE IMPORTANCE OF A DEFAULT NOTICE IN THE PRESCRIBED FORMAT

• 1- I have never received a Statutory Notice of Default. It is denied that any such Notice was received and I put the Claimant to strict proof that such documentation was served
  

• 2 -Notwithstanding I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. 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)
  

• 3 - Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)
  

EXCESSIVE CHARGES

 

1 - The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, the claimant has charged an amount that is not proportionate to the amount of any payment not made.

2 - Further, or in the alternative, the claimant’s charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963).

 

THE PERFECTION OF THE ASSIGNMENT

 

1 - I have never seen any notices of assignment

 

2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

3 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

I therefore gracefully request that this statutory demand is either dismissed or set aside on the above facts.

____________________________________

Signature

SWORN AT (address)

this day of year

before me,

____________________________________

(A Solicitor or Commissioner for Oaths)

[elliej1981]

Docman and 42 man, thankyou so much. It's all so scary and i wouldn't have an idea where to have started at all if it hadn't been for this site.

 

I will sort out all my paper work over the weekend so that i can get it into court on monday

 

again thankyou so much for all your help

[Docman]

ellie,

 

Excellent post from 42man which should help with the old duffer. Blind him with 'science' - or the law to be more accurate.

 

Bill,

 

Where did you text on bankruptcy come from?

Reasons to object to the bankruptcy petition include but are not limited to: (i've highlighted yours)

 

dispute of ownership of debt,

 

unenforceability of debt due to failure to comply with proscribed terms under CCA1974,

 

dispute of liability for the debt (e.g. where the debt has not had a judgement lodged against it),

 

dispute of the amount specified for the debt (i.e. due to unfair penalty charges etc),

 

failure to produce a properly drafted default notice or termination notice,

 

dispute of the facts relating to the default (e.g. that the default did not happen, or that the default was as a result of failure to comply with a term that of the contract that is unfair under the Unfair Terms and Conditions in Contract regs),

 

failure to serve a notice of assignment of the debt (if not an original creditor) ,

 

failure to consider an offer that would be likely to be greater than that realised under bankruptcy regulations,

 

failure to supply a copy of a credit agreement as required under CCA 1974,

 

debt being an extortionate credit bargain"

 

Are they on a sticky, as I think they should be.

[42man]

Hi Doc....from a post somewhere !! i've bookmarked about 70 threads where I have seen letters or defence and I have a huge word file with most of the relevant case law on it....!! the dispute bit obviously combines with the deifferent aspects....

 

Ellie did you admit liability or did you deny everything when you went to court ??

[semyaza]

Sorry to interrupt here. But I had to attend court in Plymouth this morning. I found the Judge very well versed in consumer law so hope it all goes well. It was not as bad as what I thought thanks to help here.

[elliej1981]

im not sure, they have a letter from me making offers of repayments, so i guess i cant really deny the debt. The judge also said that as i was making payments it was obvisouly a debt i acknowledged.

 

semyaza, glad everything went well with you. I think i may have been a bit unlucky with the judges i had

[elliej1981]

the reasons to object to banruptcy petition is really reassuring! Im still yet to receive another court date... maybe my lucks in and they've misplaced all the papers!!?

[semyaza]

Lets hope so. If there is one thing I have learnt from Law here and various other media reports is that things can fail simply because of a technicality. There are some very knowledgeable minds here so hopefully things will be ok for you.

[elliej1981]

Hiya

I have received a email from Largo today (they were trying to get me to consent to a voluntary charging order on my house and repayments which i couldnt afford) so i told them no. I have received the following email back:

 

We have referred your comments.

 

Our client advises that without any prejudice or admission of liability they are

agreeable to the setting aside of the statutory demand by way of consent with no

order as to costs.

 

A draft order is attached for your approval, signature and return.

 

Yours faithfully,

 

 

attached is a form that says:

 

IN Plymouth county court

between :

phoenix recoveries

and

me!

Consent Order

The parties having agreed to the terms as set out below:

By Consent it is ordered that:

1. THe statutory demand served 20 May 2008 be set aside

2. there be no order as to costs

 

Dated the day of 2008

 

We agree to an order in the above terms

 

 

signed signed

(largo) (me)

 

 

Really stupid question, but does this mean what i think it means and are they withdrawing the SD? Is it ok to sign, or am i agreeing to something im completely unaware of!?

[elliej1981]

another thing, at the bottom the consent form they sent me... they have also sent someone elses :-s

[semyaza]

Sorry cant answer the question, but here's hoping. However the other bit surely is a massive data protection issue? If this turns out to be good news then as an extra nail in the coffin you could report the breach ;-)

[elliej1981]

lol.. i intend to, as well as reporting them to the relevant bodies for none cca compliance etc! i've got my fingers and toes crossed that the letter means what i think it does!!

[elliej1981]

do you think this means they can't find the cca!?

[semyaza]

Well as we all know without a CCA they have nothing. Also without a Default from the original creditor then they can't own the debt anyway.

 

However it seems weird that it is via email and your signature is needed if it is being set aside? If you havn't already signed something is this a ploy to get a signature out of you so they can fake one? I don't understand why the Judge didn't spot any of this as the one I had in the same court was pretty good. I would like to know how you are supposed to tell the judge he is wrong????

[Docman]

Ellie

 

Have Largo signed the copy they have sent to you for signature?

 

If so, they seem to want to halt the SD. If that is what you want to do at this stage, I suggest you consider signing the consent but send it to the Court (or take it to Court if the adjourned hearing is on Monday) as well as to Largo.

 

semyaza is right about the signature. I suggest you sign it (you have to as its a court document) but over a line, so that ithere's a line going through the signature which will make it harder to cut & paste.

Doc

[elliej1981]

Hiya Doc,

thankyou for your response.I've been sent a blank copy to sign and then to send to Largo. Since they started court proceedings i've communicated with them predominantly via email (with the exception of cca request etc). Before i found this forum i was completely unaware that anyone would even contimplate lifting a signiture, so they do have quite a few signed letters from me.

Im going to sign the form and return it via recorded delivery, but i'll sign over the line and take a photocopy!

Im not going to get too hopefull until i hear from the courts (will i hear from them if Largo do forward the set aside consent order?)

[elliej1981]

hi semyaza,

i communicate with Largo mainly via email. As i dont like talking to them over the phone as i end up getting really annoyed!

they have quite a few copies of my signiture (as i had no idea signiture lifting went in until i found this life saving website!)

 

the first judge i had in plymouth was quite human, and didnt speak to me as if i was a very stupid naughty child, i may have just got the second judge on a bad day? It's very frustrating as he refused to even read my defence!

[elliej1981]

wooohoooo!!!

i have today received the endorsed consesnt order from the courts saying that the case has been set aside

 

thankyou all so much for all your help

[42man]

Great news Ellie....!! well done !!!

[42man]

Maybe this post needs moving to Legal successes !!!

[elliej1981]

it's such a relief! can't thankyou enough for all your help

[beanpole]

ellie,

congratulations - very pleased for you.

hope this helps others along the way.

 

:-D