Capquest and old Egg Banking CCJ from 2007

[Dwayne Dibbley]

Thanks for your comments.

[lilly white]

just looking in all ok

 

lilly

[Dwayne Dibbley]

Last minute dot com, received today ( and also i believe the court received today ) 1 day before the hearing, a statement from Barry see below, will the court accept this still as i thought their statement had to be at the court 14 days prior?

 

http://www.x-centric.net/Page1.jpg

http://www.x-centric.net/Page2.jpg

http://www.x-centric.net/Page3.jpg

http://www.x-centric.net/Page4.jpg

 

Thanks guys only really have this evening for any comments

[Brent-London]

Last minute dot com, received today ( and also i believe the court received today ) 1 day before the hearing, a statement from Barry see below, will the court accept this still as i thought their statement had to be at the court 14 days prior?

 

http://www.x-centric.net/Page1.jpg

http://www.x-centric.net/Page2.jpg

http://www.x-centric.net/Page3.jpg

http://www.x-centric.net/Page4.jpg

 

Thanks guys only really have this evening for any comments

 

Looks like they are saying they DID provide a copy of the agreement.

 

Is it pre-2007? Did you plead that the agreement was unenforceable?

[Dwayne Dibbley]

The copy of the agreement is enclosed along with 96 pages of statements etc with this letter. They have previously sent a copy but it was not sent recorded so they would have no proof of sending, and i have tried the this is unenforceable part but they didnt wash it ( i think it was along the line of prescribes terms incorrect )

 

pre-2007?

[lilly white]

CAN YOU KNOCK UP A WITMESS STATMENT TO TAKE TO COURT WITH YOU.

 

OR TO WANT TO ASK THE COURT FOR MORE TIME.

 

WITNESS STATMENT IN RESPONCE.

 

1 NOA

 

The Assignment of the Debt

 

 

19. If the Claimant was not XXXXX then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

 

[Brent-London]

The copy of the agreement is enclosed along with 96 pages of statements etc with this letter. They have previously sent a copy but it was not sent recorded so they would have no proof of sending, and i have tried the this is unenforceable part but they didnt wash it ( i think it was along the line of prescribes terms incorrect )

 

pre-2007?

 

 

You're on dodgy ground there - the judge just has to ask you "did you get this" and you'll have to say "yes"

 

Alternatively - they may say "ok maybe you didnt get them - here they are now" and hand them to you!!!!

 

Claiming you never got something is never a good long term strategy - they can always just give it to you.

[lilly white]

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“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; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor 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.

 

 

 

[Brent-London]

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“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; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor 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.

 

 

 

 

 

Thats all well and good - but according to Crapquest, he had been making small payments AFTER the termination / default - which means he knew about it and accepted it!

 

I can;t see this flying with the judge... he'll need to explain why he suddenly stopped paying.

 

The only thing he can possibly claim is some flaw with the agreement that makes it unenforceable - thats his only shot in my view.

[Dwayne Dibbley]

lilly, do i need to edit out the numbers / edit the info in any way or paste the lot into one doc?

 

Thanks

[Dwayne Dibbley]

he'll need to explain why he suddenly stopped paying.

 

only reason was that after posting the egg agreement on here i found it was not enforceable ?

[lilly white]

OK ON THE CCA YOU KNOW WHAT TO PUT AS PER PT TREAD

 

CREDIT LIMIT

 

CASH WITHDRAWELS BOTH ARE PRESCRIBE TERMS.

 

ALSO I BELIVE THERE NOT DEFAULTS CHARGES CHECK THIS.

 

SO EDIT TO SUIT HELLO BARRY.

 

 

6. It is accepted that I applied for a credit card with XXXXXXX and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

 

7. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

8. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

[Dwayne Dibbley]

but worse case if he does not set it aside a capquest go down the bankruptcy route, i cant see what they will gain i have no assets have no property and am overdrawn in my bank?

[lilly white]

Get All In You Witness Statment Set It Out Like You Have Recived.

 

Check The Statments FOR Charges Check The Agreedment If They Are Not There Game Over

 

Are You Watching Barry

[lilly white]

Take Hart, Do The Witness Statment

[lilly white]

he'll need to explain why he suddenly stopped paying.

 

only reason was that after posting the egg agreement on here i found it was not enforceable ?

 

 

DO NOT WORRY ABOUT THIS DO WITNESS STATMENT.

 

THIS NEEDS TO GO TO TRIAL

[lilly white]

Yes Edit Out Numbers.

 

So Where Is The Deed Od Assignment

 

Where Is The Default Notice.to Put To Strict Proof

 

The Cca Is Wrong.

 

Statments Charges Etc.they Where Not In The Agreedment Check This

 

In Regards To The Cca. State The True Cost Of Credit Was Not Made Plain To Me Also I Was Not Inform What The Credit Limit Was. Get This In Your Mind.

[Dwayne Dibbley]

OK on statements i have

 

18 dec 2003 Overlimit charge £20

 

is this the type of charges?

[Dwayne Dibbley]

and a :

 

18 feb 03 charge for cash advances

[lilly white]

OK THERE YOU GO ARE YOU WATCHING BARRY

Egg credit card agreements are fundamentally flawed in my view, i have seen a number of the older Egg agreements (Pre 2005) and on each one there are a number of defects

 

Firstly, the word Approved Limit is used, my view which is supported by case law is that the word 3.Limit which is set out in the margin and the word Approved limit is not sufficient to advise you what the credit limit is or how it will be decided. therefore a prescribed term is not correctly stated

 

the case i refer to is Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states

 

24. In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:

 

(a)The amount of credit must mean credit in its technical sense, and

(b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is

 

Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit.

secondly, the agreements fail to state the rate of interest for cash withdrawals. From what i have seen the agreement only states an APR which is not sufficient for cash purchases as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

 

Finally Egg will try to tell you that the missing information is set out within their terms and conditions, if they do this, then in stern words tell them IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

 

Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and Egg Agreements DO NOT

 

 

These are just my observations based upon my own experiences

 

 

[Dwayne Dibbley]

ok if i knock up a word doc and post here with what i have so far so you can cast your eyes over?

[Dwayne Dibbley]

what goes in the xxxxxx bit :

 

If the Claimant was not XXXXX then it is not admitted that there was a lawful assignment

 

Thanks

 

EDIT found it i put Egg Banking PLC in place

Edited September 17, 2009 by Dwayne Dibbley

[Dwayne Dibbley]

OK heres my draft : http://www.x-centric.net/capquest.pdf

 

hope i have got the jist of what you mean?

 

Thanks let us know?

[Brent-London]

Check out my fightback against these arse****:

 

Capquest and Stat Demands - fighting back - abuse of process claim

[Dwayne Dibbley]

Thanks for all you help guys, SD was set aside