Nottsdave/Capquest-Court date soon.

[Nottsdave]

Cheers CB

 

blimey, do I need to put all of the above in ?

 

 

Notts

[42man]

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

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.

[pt2537]

if you look at my thread on CPR 31.16 you will see how a witness statement should be set out Dave, the document you have produced is not a witness statement and sadly i do not have time to draft one up from scratch

[pt2537]

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868985

 

heres a link

[alangee]

Check your numbering sequence - you go from 24 to 29.

 

Alan

 

Edit - forget that I have reread it and you are Ok

[Nottsdave]

Thanks PT, AND 42Man,

 

So is it strike out or do I have to still do the witness statement ?

 

Notts

[pt2537]

Hi Dave,

 

Right, its not a strike out is it? you need to put in your witness statement, the statement of the facts, its not a defence, so you need to put it in in your own words so to speak

 

the format of a wit statement is set out on the thread i posted a link to, the first three paras need to set out who you are etc as i have set it out on the linked thread

 

i really dont have any more time available mate, sorry

[Nottsdave]

cheers, PT.

[Nottsdave]

ok Witness Statement in last week, court date next Wed.

 

I also sent HL Legal a letter stating that the agreement they sent contains none of the prescribed terms, hoping that they pull out.

 

Fingers crossed.

 

Notts

[Nottsdave]

so guys and gals,

 

Im due in court next wed, what can I expect when I get there ? its my first time and any clues or tips woud be a great help

 

Notts

[Conniff]

so guys and gals,

 

Im due in court next wed, what can I expect when I get there ? its my first time and any clues or tips woud be a great help

 

Notts

 

Insist on your rights not to have the cuffs too tight and coffee supplied in a proper cup with saucer at least every hour.

If you see the judge put a blank hanky over his head, then you should start to be worried.

 

Jokes aside Dave, best of luck.

[Perdita]

im watching with intrest as well dave as im in nottingham court in september and i dont know what to expect either

 

P

[the_shadow]

so guys and gals,

 

Im due in court next wed, what can I expect when I get there ? its my first time and any clues or tips woud be a great help

 

Notts

 

This is a good start... http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html#post1048145

 

S.

[Nottsdave]

Help Please,

 

Yesterday I received the witness statements from Capquest 7 days before the court date. This was after the Judge ordered that they must serve the documents 35 days before the hearing......can I do anything about this ?

The witness statement says,

 

That they purchased the debt in 2006,and that a copy of the agreement and t&cs are in the bundle.....The agreement is a application form with no prescribed terms, the T&Cs are about 6 pages long.

Account statements

 

It also states that no Default Notice can be provided allthough they state it was posted first class on 20 Jan 2005 and the absence of this is not crucial to the claim ?

 

Then a copy judgement Rankine case due to my request for documents ?

 

It also says that because I have made payments I have admitted the debt.

 

 

Please give me some help on what to do with all this

 

 

Notts

[citizenB]

Dave, I have alerted the site team.

 

How can they say they cant provide a copy of the DN but CAN confirm that it was posted 1st class. You need to put them to strict proof of this. If the DN was never sent, not in the prescribed form, contained charges, didnt give you the correct amount of time to remedy.. then it is necessary for it to be provided.

 

Did you inform the court at the time they hadnt complied with the court order of 35 days ?

 

If there are no prescribed terms on the application form then that should make it unenforceable. 6 pages of T&cs are unlikely to have been on the back of it. Are there any references to the T&cs on the application form.

 

From when are the T&Cs ?.. current or historic.

 

 

I dont understand the reference to the Rankine case, how does this apply to your asking for copy documents ?

 

I am sure others will be along soon to help and advise properly.

[Nottsdave]

Hi CB

 

How can they say they cant provide a copy of the DN but CAN confirm that it was posted 1st class. You need to put them to strict proof of this. If the DN was never sent, not in the prescribed form, contained charges, didnt give you the correct amount of time to remedy.. then it is necessary for it to be provided. I dont know ... how can I put them to strict proof with so little time left ?

 

Did you inform the court at the time they hadnt complied with the court order of 35 days ? Yes I sent the court manager a letter on the 29/5 saying that they had had the time to file and asking for the case to be struck out. I have had no response to this letter.

 

If there are no prescribed terms on the application form then that should make it unenforceable. 6 pages of T&cs are unlikely to have been on the back of it. Are there any references to the T&cs on the application form.

Only in the signature box which states The agreement is regulated by the Consumer Credit Act 1974sign only if you want to be bound by its terms.

 

From when are the T&Cs ?.. current or historic.Cant tell no dates or anything that gives me a clue.

 

I dont understand the reference to the Rankine case, how does this apply to your asking for copy documents ? Nor me ?

 

Thanks for looking in.

 

Notts

Edited June 25, 2009 by Nottsdave

[Nottsdave]

I have to go to work soon, if anyone can give me some direction/assistance I would be forever in your debt (no pun intended) Im getting very edgy the court date is next Wed and its a first for me.

 

 

Notts

 

 

***DAVE - SITE TEAM ARE AWARE - THEY WILL GET ROUND TO YOU***

I have removed all your bumps to ensure your main help required post doesnt get lost.

Edited June 25, 2009 by citizenB

[AndyOrch]

Hi Dave

 

I have been asked to look in

 

Regards

 

Andy;)

Edited June 25, 2009 by Andyorch
addition

[42man]

Dave is it correct to say that they didn't comply with a court 'time' order ? also some useful info on DN's...

 

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.

[42man]

What is important to say is that in the PArticulars they state the default is 'served' !!

[42man]

Dave my feeling is that if you want to get it struck out due to non compliance with a time order you will have to submit it officially to the court....

[42man]

Via way of N244 (I think)....

[Nottsdave]

Hi 42 man

 

They had 35 days to serve and file documents (all) before the hearing (1st July) I received the witness statements /court bundle on the 24th June.

Are these part of the documents I should have had 35 days before the hearing ?

 

Notts

[pt2537]

an application to strike is to be submitted on N244 if it is to be considered by the court,

 

you may get away with it by simple written request if the judge decides to exercise his wide discretion under the CPR but i must say, its very unlikely

[Nottsdave]

What do you think the chances would be (in your opinion) of a strike out using the N244

 

Notts