The dreaded court claim came today...

[Decanus]

oops, posts crossed CCM....

[Decanus]

Interpretation Act 1978 (c.30)

 

Act wording..

[atwozee]

Just because it is deemed to be sent doesn’t mean it was correct when it was sent – there are specific regulations that outline the form and content of the default notice and you are entitled to see a copy. Their case relies on it because without a valid DN they cannot claim the amount they are claiming.

CPR 31.14 states that you can request a copy of any document referred to in the PoC – the DN is mentioned in the PoC – if you haven’t sent out a request under CPR 31.14 then I suggest you do that and copy it to the court.

If you have already requested it via CPR 31.14 then add that point to the letter CCM did for you.

One thing I noticed on their latest terms and conditions is

18.3 This agreement is unsecured regardless of the terms of any security charge you may have given, or may in the future give, to us in relation to other borrowings.

So does this mean that trying to get a charging order (if that’s what they were seeking) would not be possible because it would be in breach of this term.

[Decanus]

good points atwozee.

 

To be able to defend myself against the claim, and the EXACT amount they are claiming from the default, I am entitled to see the original document to check it.

 

Otherwise, they could alter any information electronically to their hearts content, adjusting the money 'owed' right up until the last minute.

 

I need to be able to see the document they claimed they issued , when they issued it, as they issued it.

 

I shall make this point in the letter.

 

As I won't send this off until Monday, any other views or points I can add to creditcardmugs letter are welcome....

[Docman]

I think they are not going to run the argument about not producing a copy of the DN. Instead, they are saying "we sent it like we sent hundreds of others to the correct address and nothing in came back". Don't forget in a civil matter, it is up to the DJ who he believes - the balance of probability, not beyond 'reasonable doubt'. So yes, Lloyds can't prove they sent it, but they can claim they did and it never came back.

 

More important are the dates that they claim were on the DN. What is the date of the DN itself and what is the date that you had to remedy the default by, ie pay up?

[Decanus]

On the Particulars of Claim they state I failed to make payment on April 1st 2008, they issued a Default Notice on April 1st 2008, and then a Formal Demand was issued on 30th April 2008.

 

I understand the principle of 'balance of probabilities', but surely, as I said, if a document they are relying on cannot be produced, how can I defend against it? They are free to electronically produce anything, are they not?

 

I could write up a document right now, back date it, and claim it was produced 6 months ago! To defend their claim, I need to see what they will be relying on, not just be told we sent it but don't actually have proof...just assume we did.

[Docman]

The DN has to be drawn up very specifically. The bank will claim their template is correct. he fact that it might not be is one argument you can put but another one is whether the period to rectify the default are sufficient.

 

OK, the date of issue is 1 April 2008. What is the other date?

[wilko1]

This is an area where I feel us caggers could be more organised. CAG could have a record of cases where caggers have been to court and the creditor has made false statements or produced false paperwork, only for the judge to say on the balance of probabilities I don't think a big bank would come to court and tell lies. If the defendent could then produce a list of cases were the same bank has done the same thing, the defendent could then say do you think on the balance of probabilities that all defendents in these cases or the bank was telling lies.

Something along those lines anyway.

[Decanus]

do you mean the 'you must rectify this debt by...' date? that was April 29th.

 

So dated April 1st, rectify by the 29th.

 

Incidentally, although not entirely sure of the amounts, as Lloyds never responded to a SAR request or an earlier CCA request, the amount will include charges levied by themselves (late payment, over the limit etc), is this an area worth mentioning in my letter?

 

thanks for the help so far Docman, appreciated.

[Decanus]

interesting idea, Wilko1, probably worthy of starting your own thread with that exact point. If there is enough response, it would be worth putting up as a sticky for future help.

 

Banks and DCA's are NOT whiter than white, they go to court to win, not to play by the rules. If they can bend them, they will...

[Docman]

do you mean the 'you must rectify this debt by...' date? that was April 29th.

 

So dated April 1st, rectify by the 29th.

 

Incidentally, although not entirely sure of the amounts, as Lloyds never responded to a SAR request or an earlier CCA request, the amount will include charges levied by themselves (late payment, over the limit etc), is this an area worth mentioning in my letter?

 

thanks for the help so far Docman, appreciated.

 

 

OK I was hoping they had just given you 14 days to rectify, ie ignoring service etc. Seems Lloyds have learnt that one, although a month seems longer than normal.

[creditcardmug]

I think the amount to remedy must not include penalty charges, check with others on the ins and outs of this, it might be another angle

 

Just thought id post up this extract from a defence regarding Default Notices, for everyone's benefit

 

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

33. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

34. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

37. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. 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) CCA 1974 which states

(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.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

42. 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 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 default

 

If they cannot produce a copy of the notice they say was served, how can anyone have confidence that said notice complied with the above.

They have no "cause for action", unless they can prove compliance IMO.

 

Edited February 21, 2009 by creditcardmug

[Decanus]

great post, CCM, I will include the 'compliance' angle in my letter to the court...

[wilko1]

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken;

 

If you receive a default notce dated the 26th, is it right that the 27th is the day of service and the 28th is the first of the 14 days.

[atwozee]

Depends on how the default was sent to you – normally first class is 2 working days after presumed day of postage (date on the default) and second class is 4 working days.

So you need to know what day of the week the DN was posted and what the DN states – for instance if it states before then you wouldn’t include the day mentioned but if it said by you could include the day mentioned.

[Decanus]

I've tried to flesh out a letter of non-compliance, but not sure just how detailed to make it.

 

The crux is probably that they are claiming to have sent the DN and are saying that the fact they can prove they sent it is enough (this they can only do by an electronic printout). However, as creditcardmug said, the fact it was sent is not in itself proof of compliance. Without sight of the actual document, I cannot see if the DN was accurate or not.

 

This is my first draft:-

 

In the County Court

 

Claim number

 

Between

 

Lloyds TSB Bank PLC

 

 

–V-

 

 

 

For the Attention of the Case manager

 

 

County Court

 

 

Dear Sir,

 

Further to the Order given by District Judge sitting at the Southend County Court on Feb 2009.

 

 

And in particular.

 

“The claimant shall within 3 days of service of this order file and serve

 

a) a copy of the agreement

 

b) a copy of the default notice “

 

I note that the claimant has failed to serve either item despite being ordered to do so. They have supplied in lieu of item a, ‘a copy of the agreement’ an application form, not the required agreement containing the correct prescribed terms, and have failed to produce item b the default notice at all. I also await sight of a copy of the claimant’s Allocation Questionnaire; they have been in receipt of mine for over two weeks

 

Without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement. The 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. I am at present unable to verify that the default notice was accurate, and contained all the required prescribed terms to make it enforceable.

The claimant has had every opportunity to file such documentation. It is not unreasonable for them to have filed such documentation on time at the first opportunity, when in receipt of my Civil Procedures Rules Part 31.14 and Part 18 requests. They have since been given a second chance to file documents by order of District Judge A and they appear to have ignored the Honourable Judges orders and have failed to comply as directed.

 

The result of this failure is that I am unable to file a fully particularised defence to the claimants claim as without the documentation which the claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person

 

Therefore, I would request that the pursuant to CPR part 3.4, 2 © that the claim is struck out without further order

 

If this is not acceptable, then please refer this letter and the file to District Judge A to highlight the claimants non-compliance with the order dated Feb 2009 and for further directions to be issued.

 

 

Signed……………………………. (Defendant)

 

Date …………………………….

 

too much? too little? missed stuff out? appreciate feedback..

Edited March 8, 2009 by Decanus

[lavamyz]

subbing..

[Decanus]

will be posting this out today, so if there are any last minute words of advice, now's your chance.....

 

I think the letters self explanatory though, and I can't see the DJ throwing the claim out, although I may get some joy on the DN. The badly photocopied 'application' is not great either...

[creditcardmug]

I am at present unable to verify that any default notice was accurate, and was in the prescribed form

 

Suggest you use this instead of the sentence you have in

[Decanus]

that does sound better, I've added that. Thanks CCM.

[Decanus]

posted off first thing yesterday, so hopefully will hear quite soon.

 

Was wondering if its worth still pursuing Lloyds for the Default Notice directly, writing them a direct letter independent of the court action. They are still in default of a SAR request after all.....

[Decanus]

quick update.

 

Received today another General Form of Judgement or Order Letter...

 

it states:-

 

'It is ordered that unless within 3 days of service of this order the Claimant complies with para 1 of order made , the claim will be struck out without further order'

 

'Refer to DJ in paperwork within 7 days in any event'

 

This seems a good development, don't you think....

Edited March 8, 2009 by Decanus

[angel_1]

hiya fingers crossed - wont cross the legs too cos i cant climb the stairs otherwise;)

 

hoping it is a good result and that the courts are getting fed up too with all this stalling by creditors,,,,

 

laters angel x

[creditcardmug]

quick update.

 

Received today another General Form of Judgement or Order Letter...

 

it states:-

 

'It is ordered that unless within 3 days of service of this order the Claimant complies with para 1 of order made 6 FEB 2009, the claim will be struck out without further order'

 

'Refer to DJ ******** in paperwork within 7 days in any event'

 

This seems a good development, don't you think....

 

 

Just goes to show these letters to the court work sometimes....

 

excellent result, you should be ok now:)

[peter1234]

hey loving this thread

dont think i can wait untill 7 days for the next episode

hope it all works out for you i think after all your work you deserve a good result Have just started action against one of my cards so the above info is very helpful:)