Nottsdave/Capquest-Court date soon.

[Nottsdave]

thanks 42man good stuff.

 

I just rang the court this afternoon and they told me that the claimant had paid the £300 squid hearing fee but had not filed anything (well over a week late now).

They then told me they had my letter asking for the case to be struck out and it was going before the judge tomorrow, fingers crossed

 

I will continue to get my witness statement ready just in case.

 

Notts

Edited June 8, 2009 by Nottsdave

[MARTIN3030]

Good news then.

[Nottsdave]

hope so , I could do with some.

 

 

Notts

[creditcardmug]

They can get their hearing fee back, if they vacate a week before;)

[Nottsdave]

hmmmm I wonder if they are pushing the boundaires on this one.

 

Notts

[Nottsdave]

Update,

 

Received yesterday.

 

Letter stating,

 

We enclose Request for further information and would be grateful if you would please let us have your answers to the questions we are asking within the next seven days.

We enclose copies of our clients documents for your consideration.

 

yours faithfully

 

blah blah

 

then attached,a form that is a list of questions (my initial thoughts are in bold)

 

1 Can you please provide the calculation that totals your claim of £xxxx...... why would I do that ?

 

2 In your application to set aside judgement you state you did not receive the claim form. The claim form was issued to you by Northampton County Court Bulk Centre which was served by post to the address we hold on file which is the same address all previous correspondence have been sent.

Can you please confirm you have received previous comms from us at this address......I have never asked for a set aside nor have I stated that I didnt rec the claim form

 

3 Please can you provide details in relation to your claim that interest was paid to the Halifax......This claim is for a Sainsburys Credit Card

 

 

4 What interest rate did you pay the Halifax....This claim is for a Sainsburys Credit Card

 

5 Please can you provide evidence of this rate of interest... as point 3

 

6 Please can you provide details in realtion to your claim that interst was paid to Capital One...as point 4

 

7 What rate of interest did you pay Capital One....as point 3

 

8 Please can you provide evidence of this rate of interest ...as point 3

 

9 / 10 and 11 questions are repeated but for MBNA...as point 3

 

12 Can you provide evidence that an application for a balance transfer was rejected and what rate was offered....Bemused

 

13 Pleae can you provide a copy of the balance transfer was rejected from the bank... Bemused

 

14 Please can you provide evidence that the loan application was rejected...Bemused

 

15 What rate of interest was applied at the time of the loan....Bemused

 

16 Please can you provide evdence that an application was made for a remortgage and then rejected...Bemused

 

17 Please can you advise what rate of interest did you pay for each agreement and can you provide statements proving this ...Bemused

 

18 Please can you provide details of what credit you did receive ...Bemused

 

 

With the questions came an application form which is not enforceable a bunch of statements, letters bought and sold to Capquest nothing else.

 

 

So what do I do with this ? do I respond or not, Im going to ring the court today to see if the judge has thrown the case out.

 

 

Notts

[Nottsdave]

bumpity bump

 

 

Notts

[citizenB]

Ummm, bizarre is what I think, Dave. I will alert the site team to the post in question.

 

I would say, they have lost the plot somewhat.

 

However, just to confirm.. this is a Sainsbury's card. Always has been, it didnt start life off with one company and get taken over at any stage ?

[Nottsdave]

Hi CB

 

No it started life as a Sainsburys CC and died a Sainsburys CC, It was sold to Capquest as a Sainsburys card and was opened as a Sainsbury card.

 

Boy am I confused.

 

Notts

[citizenB]

Hi CB

 

No it started life as a Sainsburys CC and died a Sainsburys CC, It was sold to Capquest as a Sainsburys card and was opened as a Sainsbury card.

 

Boy am I confused.

 

Notts

 

 

You n me both.. very odd. Site team are aware, but IMHO, you need do nothing. They have obviously lost the plot.

[42man]

Dear Sir / Madam

 

I am unable to answer your questions as I can categorically state that I have never had any accounts with MBNA/Halifax/Bank Of Cloud Cuckoo Land

 

I now require your official complaints procedures in relation to this obvious mistake. I also require you to please confirm in writing that you have made a mistake in my identity and that all my files will be deleted and also apply this principle to any adverse data that you have placed on my file. Failure to do this will result in me reporting your company and it's suitability to hold a Consumer Credit Licence into question with the Office Of Fair Trading.

 

Yours faithfully.

[Nottsdave]

Hey 42man

 

Just to confirm this letter came from HL Legal acting for Capquest, should I still send the letter.

 

Notts

[Nottsdave]

bump

 

Please

 

Notts

[creditcardmug]

Its seems obvious to me that some pinhead in their office has sent out the wrong template letter,(not hard to do if you are only there to push buttons on a pc, and have no knowledge or interest in the CCA, and therefore NO understanding of what you are supposed to be doing)

 

Its up to you, either ignore, or if you can be bothered write and point out the error of their employees ways

[Nottsdave]

ok cheers for that,

 

Can anyone help me put together my witness statement and court bundle I have tried but I cant get my head round the legal jargon required.

 

I need to get this into the court asap, court date at the begining of July.

 

Please

 

Notts

[Nottsdave]

anyone please ?

 

Notts

[citizenB]

Here are some guidance notes to Witness statements that pt2537 has provided. If you click on the link (which is a single post containing the text I have reproduced for you below) then click on the thread title which appears to the right top of that post, you might find Humbleman's WS which will give you a good idea how to do one. DO NOT COPY ANY ONE ELSES WITNESS STATEMENT, they are each individual to a specific case.

 

HTH

 

Guidance Notes on Witness Statements

http://www.consumeractiongroup.co.uk/forum/show-post/post-2167282.html

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public and, at any other hearing, by their evidence in writing.

CPR r.32 and CPR PD 32 set out the formal requirements for written evidence, including witness statements. These are summarised below.

Format of the witness statement

The top right hand corner of the first page should contain:

The party on whose behalf the statement is made;

The initials and surname of the witness;

The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

The date the statement was made.

The witness statement should be headed with the title of the proceedings.

The witness statement should:

Be produced on good quality A4 paper with a 3.5cm margin;

Be fully legible and should normally be typed on one side of the paper only;

Be bound securely in a manner which would not hamper filing;

Have consecutively numbered pages;

Be divided into numbered paragraphs;

Have all numbers, including dates, expressed in figures; and

Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement, for example [at page14 “ABC1”]

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Content of the witness statement

The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;

The first paragraph generally sets out the “who, what and why” of the statement maker:

oWho the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)

oWhat the witness’s connection with the proceedings is

oWhy the witness is making the statement;

Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”.It is important to state the source of any matters or information or belief;

Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;

Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;

Witness statements must contain a statement that the witness believes the facts in it are true;

Witness statements should be signed and dated.

Please see outline precedent witness statement below.

Exhibits

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.

Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited.

The top right hand corner of the exhibit sheet should contain:

The party on whose behalf the statement is made;

The initials and surname of the witness;

The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

The date the statement was made.

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.

[Nottsdave]

CCM

 

Can you help me put together the witness statement ?

 

Cheers

 

Notts

Edited June 13, 2009 by Nottsdave

[Nottsdave]

bump

[Nottsdave]

Can anyone help me put together my witness statement and court bundle I have tried but I cant get my head round the legal jargon required.

 

I need to get this into the court asap, court date at the begining of July.

 

Please

 

Notts

[Nottsdave]

Ok

 

Heres my best shot at the witness statement, please advise if this is ok.

 

P.O.C.s are as follows,

 

Monies due under regulated Credit Agreement number *********

Between Sainsburys and the Defendant the benefit of which was assigned to the claimant on ......

The agreement terminated upon the defendants failure to comply with the terms of the agreement and/or the statutory notice of default served by sainsburys.

The claimant seeks interest blah blah blah

 

My defence is in post 109

 

My CPR request is in post 16

 

I have received from Capquest a application form which had none of the prescribed terms, a bunch of statements which show no payments made by me to them.

Notice of Assinment

No Default Notice

 

 

 

In the .......... County Court

 

 

 

Claim number ...........

 

 

 

 

 

 

 

 

 

 

Between

 

 

Capquest Investments Limited- Claimant

 

 

 

and

 

 

 

.............. - Defendant

 

 

 

--------------------------------

 

 

 

Witness Statement

 

 

 

-------------------------------

 

 

 

 

1. I ........................................................... am the defendant in this action and make the following statement regarding my defence to the claim made by Capquest Investments Limited

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on ............. I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

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

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

 

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

 

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I draw to the courts attention that this case should not be brought before the court as facts stand an Act of Parliament, in this case the Consumer Credit Act 1974, plainly enacted to protect the Consumer precludes a creditor bringing an action before the court where t hey have themselves failed to discharge their obligations under the Act. Therefore I suggest that the only just action that can be taken is the claimants case be struck out forthwith

 

The relevant Act of Parliament in this Case

 

9. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

10. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

11. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

The Request for Disclosure

 

12. Further to the case, on ..................... I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

13. To Date the claimant has not fulfilled my request under the CPR and I have not received the required documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked ND1)

 

 

The importance of a copy of the credit agreement and its production before the court

 

 

14. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

15. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

16. 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

17. 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 with 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

 

 

18. 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."

19. 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

 

20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

21. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made o n 06/12/2008 as laid out in point 5,6 7& 8

 

The courts power of enforcement

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

23. Further more 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

 

24. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

26. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

27. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

 

Conclusion

 

28. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute.

 

29. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

30. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

31. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

32. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence when the claimant produces the requested documentation and I am given sufficient time to inspect the documentation

 

 

 

 

 

Statement of Truth

 

 

I ................, believe the above statement to be true and factual

 

 

Signed .....................

 

Dated the xxth day of xxxx 2009

 

Please let me know if this is ok Im getting desperate.

 

 

Notts

 

__________________

Edited June 15, 2009 by Nottsdave

[citizenB]

What is the situation with the Default Notice ?. Did they issue one, was it in the prescribed form and valid ie did it give you 14 clear days, etc.

[Nottsdave]

never seen a DN

 

 

Notts

[citizenB]

Then I think you need to include something about that. To be able to ask for the full balance then they have to Default and Terminate the account properly. There is nothing in the CCA 1974 which says they can just have a bad hair day and terminate you.

 

BRB. - about half an hour.. got to look for the regulations for you.

[citizenB]

DEFAULT NOTICE

 

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

33. It is denied that any Default notice was received as required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

34. 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.

 

35. 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

 

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.

 

 

36. 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.

 

37. 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

 

38. 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]"

 

 

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

 

40. 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

 

41. 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

 

42. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

43. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

44. I therefore put the claimant to strict proof that a Default Notice in the prescribed form was ever issued along with proof of service.

The following is the Practice Direction that deals with service by post.

 

You will need to renumber this lot into your statement.

HTH. I have asked the site team to confirm that this Default information is ok to put in your WS.

 

 

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.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division