Howard Cohen & Co / CL Finance - v littlebert

[littlebert8]

Thanks GD, I've commented against your points below...

 

So no witness statement from the actual claimant then...

Nope, just plenty of hearsay from a litigation assistant at Cohens. Don't think you can get a fag paper between Cohens/CL/Lewis in practice though. Most of the assertions made in this WS related to actions taken by the OC, MBNA. I don't see how someone at cohens can witness these 'facts'

 

re point 6 and 7, any evidence of it actually being posted/delivered?

No proof of postage or delivery. I guess they can assume service 2 or 4 days after posting depending on class of post, but there is nothing other than the date on the copy documents.

 

re point 8, see money laundering regs, finance act etc

This doesn't make any sense. If MBNA have the agreement in storage, then why haven't CL/Cohens requested it. They are admitting that the agreement exists, but have provided no valid reason why they can't retrieve it. I'm not sure I buy it anyway as the copy looks like microfiche and I was under the impression that MBNA destroyed the originals.

 

Are the DN, Deed of Assignment and Notice of Assignment ok?

I've posted links in the text to images of those docs. The DN is invalid on 2 counts: 1 the arrears probably include charges 2 the remedy date is 23 March, but the account was assigned/terminated on 20 March. The DoA is pretty useless - I dont quite understand how a 'continuous assignment of accounts for a 6 month period' works. the shedule showing my details could have been typed up by anyone. TBH I really dont know what too look for hear - it certainly doesnt look convincing to me though.

 

Will look in over the weekend, but I would suggest looking into getting the full defence and counterclaim in.

 

Regards

Edited January 14, 2010 by littlebert8

[littlebert8]

Just had another thought about the DN.

 

As cohens are being coy about proof of service, I shall aver that the earliest it could be deemed as served is Thur 12 March as it is dated 6 March (Fri) and they don't specify the class of post, so it should be deemed 2nd class i.e. 4 working days.

 

This makes the DN invalid in itself as only only provides 11 days to remedy the default.

[citizenB]

They say the NOA was not returned therefore you received it.

 

Sadly the NOA has to be sent by registered post.. so unless they have proof of posting they cannot use the "it wasnt returned therefore it was delivered" argument, for that.

 

The DN, if there is no proof of the method of posting then it is automatically assumed that it was sent 2nd class = 4 days for delivery. If it was posted just before a weekend then that will extend the time for delivery.

 

You need to go through their WS point by point and rebut / discredit each point.

 

I dont understand the continuous assignment bit. Either it was assigned to them in December 2008 or March 2009.

[GhostDebt]

Re the documents you posted #123.

 

Is there anything to link GSD1 page 1 and 2 together?

Page 1 has a ref no. vir 04/04

Page 2 has a ref no. vir 101-p-02

So they do not look like front and back of the same document.

Plus its not signed by them.

 

GSD2 - have they sent all the statements or do they start with a carried forward balance?

 

GSD3 - DN

6 march was a friday. 1st class post date of service would be the 10th, second class would be 14th therefore not enough time to remedy.

My opinion only, look for further comments on this.

The DN refers to para 8 on the agreement. The agreement they sent you has no paragraph 8? - Double check to be sure.

Are the arrears correct? or are they asking for the full balance?

 

GSD4 - DoA

Anything to link the 3 pages together? Anything to link your name to the Deed?

Date on Deed 29.12.2008?

 

GSD5 - NoA

Does the amount on the NoA match that in the DoA

Date on NoA 9.04.2009

 

---

I would look at a full defence and also look to get a skeleton arguement together.

See if there is any points of use or interest in mine if you want, but make sure you check the info yourself and are clear on your arguements.

 

Regards

[GhostDebt]

Notice of Assignment needs to be sent by registered post, so they must have proof of postage or delivery for it to have been served properly.

See LPA 1925 s.136 and s.196

[littlebert8]

Here is my revised Defence. Any comments would be greatly appreciated...

 

[Header]

 

1. I, XXX, of XXX, XXX am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited.

 

2. In accordance with the directions of District Judge XXX made on 21 December 2009, this is an amended defence and counterclaim that supersedes the ‘Embarrassed’ defence filled XXX.

 

3. The statements made in this defence are in reply and opposition to the Claimants Statement of Claim and the subsequent witness statements of Mr XXX 09 January 2009

 

4. I Deny that I am liable to the Claimant in the sum of £8xxx.xx or indeed at all.

 

 

The Agreement

 

 

5. I neither admit nor deny that I entered into regulated agreement with MBNA Europe Bank for the provision of a Virgin Money Credit Card, account number xxxxxxxxxxxxxxxx and put the Claimant to strict proof.

 

6. With reference to paragraph 3 of the Claimants Witness Statement and the document Exhibited as ‘GSD1’, I require the opportunity to inspect the original document in order to satisfy myself that it exists and was signed by my own hand.

 

7. If 'copies' of any of the documents referred to in this case are to be relied on in court rather than 'originals', a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act is required, including but not limited to:

a.

a copy of the procedure(s) used for copying, storing and retrieving documents;

 

b.

a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s);

 

c.

copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with;

 

d.

copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

8. I would also bring to the courts attention the following:

Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems, BIP 0008:2004 (previously PD 0008 ) issued by the British Standards Institution (BSI).

 

This Code of Practice provides guidelines to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The basis of the guidelines are that process under which documents are managed are as important as the technology used, for example where a document is printed, it should accurately reproduce the contents of the "original". The Civil Evidence Act (1995) introduces a flexible system whereby all documents and copy documents, including computer records, can be admitted as evidence in civil proceedings. A judge will still have to be persuaded to treat that evidence as reliable, therefore organisations will have to prove the authenticity and reliability of the record.

 

The key principles behind BIP 0008 are:

Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.

Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed.

Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.

 

9. In light of point 7 above, I therefore put the claimant to strict proof that the documents they are relying upon in this claim are compliant with the key principles of points 7 & 8 above and that failure to supply this proof renders the evidence inadmissible.

 

10. With reference to paragraph 8 of the Claimant’s Witness Statement, the claimant states that the original document is in the possession MBNA Europe Bank Limited, yet despite claiming to have been assigned the account, they appear to have made no atampt to obtain this crucial document from the assignor.

 

11. The claimant has failed to adduce hearsay evidence as required by the Civil Evidence Act 1995 and as directed by. As a consequence the document marked ‘GSD1’ should be set aside as per point 9 above.

 

12. I deny that the copy document exhibited as “GSD1” in the Claimant’s Witness statement of 09 January is an enforceable agreement under the terms of the Consumer Credit Act

 

13. The documentation which the claimant claims to be relying upon to bring this action must contain the prescribed terms specified in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

a.

Number of repayments;

b.

Amount of repayments;

c.

Frequency and timing of repayments;

d.

Dates of repayments;

e.

The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

15. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document . I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.""

 

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

17. I accept that I made an application for a credit card and that in consequence of that application MBNA Europe Bank Ltd advanced monies to me.

 

18. With reference to paragraph 9 of the Claimant’s Witness Statement, should the claimant seek 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 s65(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;"

 

 

Statement of Account

 

 

19. I deny that a balance of £8xxx.xx is outstanding under the agreement and contend that the copy statements exhibited as ‘GSD3’ in the Claimants Witness Statement include unlawful charges. Furthermore the statements are incomplete and begin with a balance carried forward, the origin of which remains unexplained.

 

20. The Claimant has failed to comply with the directions of District Judge XXX made on 21 December 2009 by failing to serve “a full schedule of loss, to include a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of this order”

 

21. Documents received by the Defendant on 14 January 2009 included no more than the same incomplete set of copy statements previously disclosed by the Claimant.

 

22. The Claimant has disclosed limited copy statements however these statements show an opening balance of £6489.72. They do not show how that earlier amount has been calculated. Furthermore, the statements show various ‘default sums’ and fees for which there would appear to be no contractual basis. Consequently those fees are unlawful. Furthermore, the Defendant has no means of ascertaining whether the earlier sums validly accrued.

 

23. I content that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause in that it does not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred.(Dunlop Co Ltd v New Garage Ltd [1915] AC 79)

 

24. The Claimant has not disclosed a copy of the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception) “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage)

 

25. The Charges referred to relate to a “LATE DEFAULT SUM”, which is a standard fee of £12 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate.

 

26. The second charge is an “OVERLIMIT DEFAULT SUM” which is again charged as a standard fee, this time of £12, which is charged for every month in which an account exceeds the credit limit imposed. Again the fee is charged irrespective of the extent by which the credit limit is exceeded, it is the same fee if the limit is exceeded by £10 or £10,000. The Claimant suffers no actual loss in the sense that the Claimant continues to charge interest on the balance outstanding and consequently suffers no loss. The clause must therefore be penal in nature.

 

27. Furthermore, the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer.

 

28. The Defendant refers to the Office of Fair Trading guidance on this issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unfair.

 

 

The Default Notice

 

 

29. I deny receiving the Default Notice exhibited as ‘GSD3’ in the Claimants Witness Statement until after the start of these proceedings.

 

30. The Claimant has failed to provide proof of service for the Default Notice as directed by District Judge XXX on 21 December 2009

 

31. Notwithstanding points 29 & 30, I note that the date on the copy Default Notice is 06 March 2009. If the court wishes to accept this as the date of posting, then service should not be deemed to have occurred before 12 March 2009. Without evidence to the contrary, the class of postage should be assumed to be 2nd class with service deemed to be 4 working days later [Need citation for the Practice Direction]

 

32. The Default Notice exhibited by the Claimant is invalid on three counts:-

a.

The arrears include unlawful charges

b.

The remedy date of 23 March 2009 does not allow 14 calendar days from the deemed date of service (12 March 2009)

c.

The agreement was terminated by assignment on 20 March 2009

33. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of the breach and include accurate instructions on how to remedy any such breach. The prescribed format for such documents 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).

 

34. 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 also 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).

 

 

The Assignment

 

 

35. I deny that a lawful and absolute assignment has taken place.

 

36. With reference to paragraph 7 of the Claimant’s witness statement, I do not understand how a deed of assignment dated 29 December 2008 can be used as evidence that the account referenced xxxxxxxxxxxxxxxx was assigned absolutely on 20 March 2009

 

37. The document exhibited as ‘GSD4’ in the Claimant’s Witness Statement contains 3 separate pages. There is nothing to connect the page showing account number xxxxxxxxxxxxxxxxxxx with the pages setting out the agreement and its execution by the parties. Furthermore, the date of 20 March 2009 is not shown on any page

 

38. Under section 136 of the Law of Property Act 1925 the assignor, or assignee, must notify the debtor in writing and this must be effected in law via section 196 of the Act in order to lawfully attain the right to issue proceedings. The Act stipulates that the notice must be served via registered post which is covered under the Recorded Delivery Service Act 1962.

 

39. The Recorded Delivery Service Act 1962 states a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 (schedule 8 notes any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

40. I note the Claimant’s assertion that the notice was not “returned undelivered”. However, the Claimant has failed to provide proof of service or proof of posting.

 

41. The Defendant would like to refer the court to the case, which placed importance on s.136 of the Act, in W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169 where it was held: “written notice of the assignment is an essential part of the transfer of title to the debt, and the requirements of the sub-section must be strictly complied with. I think that the notice itself must be strictly accurate, in particular, in regard to the date which is given for the assignment.”

 

42. Further, and in any event the notice referred to identifies a balance outstanding. That balance includes default charges imposed pursuant to an unfair contract term and/or a penalty clause.

 

43. I also note that the sum quoted in the Notice of Assignment is £8xxx.xx and that this differs from the ‘Balance Sold’ figure of [£5 less] quoted in the Deed of Assignment.

 

44. Consequently any Notice served by the Claimant which referred to the alleged balance outstanding would be inaccurate and therefore invalid.

 

45. As a consequence of its failure to serve a valid Notice of Assignment, the Claimant had no right to bring this action is his own name.

 

 

Conclusion

 

 

46. The claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a Credit Agreement is inadmissible as evidence in this claim.

 

47. The claimant has not been correctly assigned this alleged account and has no legal right of action for the aforementioned account.

W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 refers.

 

48. The claimant has failed to serve a valid default notice, and the claimant should not be bringing this action before the court.

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.

 

49. In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement and costs/counterclaim be awarded in favour of the defendant.

 

 

Counterclaim

 

 

50. The defendant repeats his defence

[need to find a good example of an unlawful rescission counterclaim]

 

[statement of Truth]

[msshaw]

Here is my revised Defence. Any comments would be greatly appreciated...

 

 

31. Notwithstanding points 29 & 30, I note that the date on the copy Default Notice is 06 March 2009. If the court wishes to accept this as the date of posting, then service should not be deemed to have occurred before 12 March 2009. Without evidence to the contrary, the class of postage should be assumed to be 2nd class with service deemed to be 4 working days later [Need citation for the Practice Direction]

 

Bad news I think -

Practice Direction 6. I would draw your attention to rule 38 - Deemed service which states:

 

"(1) Unless the contrary is proved, a document which is served in accordance with these Rules or any relevant practice direction will be deemed to be served on the day shown in the following table – Wouldn't format right - see link below

 

http://www.justice.gov.uk/family/procrules/parts/part06.htm#IDATJV4B

 

 

(2) If a document is served personally –

(a) after 5 p.m. on a business day; or

 

(b) at any time on a day which is not a business day

 

it will be treated as being served on the next business day."

 

There is no mention of working days for post, and it is treated as 1st Class by the looks of things.

 

 

Rule 35 - Metods of Service also states:

 

"

(1) Subject to paragraph (2), a document may be served –

(a) where it is not known whether a solicitor is acting on behalf of a party –

(i) by delivering it to the party personally; or

 

(ii) by delivering it at, or by sending it by first class post to, the party’s residence or last known residence; or

 

 

(b) where a solicitor is known to be acting on behalf of a party –

(i) by delivering the document at, or sending it by first class post to, the solicitor’s address for service; or

 

(ii) through a document exchange in accordance with the relevant practice direction.

 

 

 

(2) A notice of hearing must be served in accordance with paragraph (1)(a)(i) or (ii) irrespective of whether a solicitor is acting on behalf of a party."

 

So that would imply delivery on 8th March? I am not an expert, so it may well be possible to defend this by proving otherwise, especially as 2 days after is a Sunday where there would be no deliveries.

 

Good luck and I am rooting for you.

 

M

[littlebert8]

Thanks msshaw. I'm not sure that service of the DN is covered by the CPR - this seems to relate to documents served during the course of litigation.

 

I have seen reference to the Interpretation Act 1978 and a practice direction from 1985. Will have a look for this when I get home.

[msshaw]

Hi again,

 

Further research shows that you are right regarding the Interpretation Act:

 

"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.

 

I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on 8 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.

 

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.”

 

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).

http://www.x-centric.net/capquest.pdf

 

Hope that helps.

 

M

[littlebert8]

I was going to put this in as a counterclaim (taken from GhostDebt thread):

 

1. The defendant repeats his defence

2. The defendant counterclaims costs to date, to be summarily assessed in accordance with Practice Direction 48.6 and at the appropriate rate.

3. The defendant counterclaims for damages in relation to the anxiety the harassment of the Claimant has caused the Defendant in accordance with Section 40 of the Administration of Justice Act 1970.

4. The court should summarily assess an appropriate level of award for damages.

5. The defendant counterclaims for damages to his credit worthiness by the claimants actions in issuing an invalid default notice and recording inaccurate information with the Credit reference agencies whilst having terminated the account in a manner which is an unlawful rescission of contract.

6. For clarification of the extent to which damages can be awarded the court should make reference to:

Kpohraror v Woolwich Building Society 1996 4All ER 119;

King v British Linen & Co (1899) 1F 928;

Wilson v United Counties Bank Limited. [1920] AC 102;

Richard Durkin v DSG Retail Limited and HFC Bank Plc;

and summarily assess an appropriate level of award for damages.

 

Howver, Im not sure about the damage to credit rating bit - I have just checked CreditExpert and CL Finance are not reporting this account.

[littlebert8]

Also, does anyone know what the fee is for a counterclaim where you are not claiming for a specified sum of money?

[citizenB]

littlebert, all the postal regs you require are included in the defence below which has been produced purely for a dodgy default notice.

 

Notes:

 

I would put the date of the DN as "6 March 2009 (Friday)" that way it will be obvious it was prior to a weekend. I doubt very much it was actually posted on the Friday in any case. More likely the following Monday (or collected by UK Mail over the weekend).

 

You need to check your spelling .. I think you mean to say "Contend" but have spelt it Content

I note they assigned the account to another company before the remedy date on the Default notice. Which sort of messes that up in that they definitely didnt allow the amount of time for you to remedy the breach and they terminated prior to that same date.

 

xx

 

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.

[citizenB]

In answer to your other question, I believe if there is no value to the counterclaim, it will cost you £150.00.

[littlebert8]

I'm in court on Thursday for the trial hearing.

 

Cohens have failed to serve a trial bundle and nothing had been filed at court as of 4PM yesterday.

 

I think I have a good case, but am still worried about playing the judge lottery. Anybody got any tips on how best to deal with the situation where Sir or Madam is not receptive to your case?

[DonkeyB]

The danger is that Cohens will file at court tomorrow, and you will get a bundle as well, or on the day, with little or no time to digest the contents. Humbleman got his bundle at the court and the judge still let the case proceed!

 

Sadly, they often get away with this, because judges let them. If a solicitor tells a judge, "It was definitely sent, m'lud", they tend to be believed. It's just coincidence that the claimant turns up with a spare bundle

 

If this does happen, you should consider asking for an adjournment due to the unacceptable late filing, and be firm about it. As a LiP you would be severely prejudiced by their late filing.

 

On the other hand - they may simply have thrown in the towel and may not even turn up.

 

So yes, judge lottery, always. But if you are well prepared, you won't go far wrong.

 

Call the court after say 11am tomorrrow to see if anything has been filed, and let us know once your postman's been and gone. Then we can think further and formulate an action plan for the day, as well as getting your costs schedule in tomorrow (if you can claim, that is).

[Gazza112]

I'm in court on Thursday for the trial hearing.

 

Cohens have failed to serve a trial bundle and nothing had been filed at court as of 4PM yesterday.

 

I think I have a good case, but am still worried about playing the judge lottery. Anybody got any tips on how best to deal with the situation where Sir or Madam is not receptive to your case?

 

 

Hi Littlebert

 

I can only give you advice on my Court case with CL Finance/Howard Cohen. They tried on the last day with me by submitting a letter a couple off documents, to try and get the case set aside for a month till they come up with an agreement.

Stand by your ground if this happens, but you should find that any late paperwork submitted will be chucked out. Well that's what happened in my case, it was also handy as i left a paper trail with the Courts which came in handy. as i related back to the Judge that i tried to resolve this case.

So on looking at my 2 cases with CL finance/Howard Cohen you should find that no one will turn up, going on what happened to me.

I put in a wasted cost order and they never turned up for that as well.

 

Good luck for Thursday

 

 

Gaz

[littlebert8]

They were late complying with the last order - I have the franking sticker that states it was posted 2 days after it should have been served! They also filed their checklist and hearing fee late - only a few days before the standard unless order expired. They have a track record of taking the p.

 

At the SJ hearing they were represented by a young local barrister. Nice fellow, but seemed poorly briefed - not sure if I will be so lucky again.

 

I'll be in work well before the post tomorrow, but will ring the court anyway.

 

As for costs, I already have permission to claim costs for the SJ hearing. I was intending to list all costs up to that point and separately list the cost of an amended defence and trial prep.

[Gazza112]

Hi Littlebert

 

Just wanted to ask, was your cases over £5000

 

 

Gaz

[littlebert8]

Hi Littlebert

 

Just wanted to ask, was your cases over £5000

 

 

Gaz

 

Yes - closer to £9K

[littlebert8]

Have made the mother of all cock-ups - trial was today.

 

Don't know if cohens attended, but suspect I have blown it. Will check the notice when I get home, but its bound to be my mistake.

 

All the effort and stress just to throw it away with the most basic error. I feel quite sick.

[Gazza112]

Hi Littlebert

 

 

Sorry to hear that, just hope the judge chucks the case out for you.

 

 

Gaz

[littlebert8]

Thanks, but I don't think I can be that lucky.

[littlebert8]

Just checked the trial notice from last August - it does indeed say the trial is listed for today.

 

I cant understand how I made such a basic error. I booked time off work ages ago - I'm sure I even checked the notice a few weeks ago. I've always had the 11th in mind as the date and nothing made me thing otherwise. I even phoned the court the other day and checked the start time.

 

I phoned the court this afternoon to ask if the trial bundle had been filed. They couldn't find anything, but then one of the clerks checked the diary and noticed that the trial was today - hence the file was with the judges.

 

They couldn't tell me any more, but said to phone back at about 9:30 tomorrow to find out what the judge has ordered.

 

I guess the best case scenario is that Cohens didn't turn up. However, I don't hold out much hope if they did. I'd go to town on them if they didn't show up, so I fully expect them to have done the same to me.

 

I suppose I'll just have to wait and see, but is there anything that I can do if the judgement has gone against me? Do I have any grounds to set aside the judgement or do I just have to put it down to experience and take whats coming?

[DonkeyB]

littlebert, a little tactical thinking is required here. Will PM a couple of outrageous ideas.

[littlebert8]

I must have the luck of the Irish at the moment!

 

Just got of the phone to the court - very nice lady has found the file for me and has read me the judges orders from yesterday. Goes something like this

 

1. trail be re-listed for next available window

2. Claimant to file and serve a reply to the amended defence within 14 days of today

3. Defendant to file witness statement within 14 days of the new trial date.

 

I will be collecting a copy of the notice from the counter tomorrow. Will post up the exact words as soon as I can

 

Cant help thinking I could have nailed them if I'd been able to present my case. Just glad that littlebert lives to fight another day. I'm a very lucky cagger indeed!!!!!