VG - Vs Northen Rock - Charging Order

[ScabHunter]

I don't think I'll ever get to grips with this photobucket business

 

You just have!

 

Totally concur with postggj on this one, both with his conclusion and the reasons given for it.

 

SH

[semyaza]

Although not an expert but in a similar situation was going to say also that this letter states 'within 14 days' but it should be 'within 14 days from date of service' which as postggj stated is 2 to 5 days. The wording is correct though.

 

Not heard of the underlining date part though which would help me along a bit.

[creditcardmug]

it should have a date to remedy by (the date doesn't have to be underlined), im fairly sure it should also say how much you have to pay to remedy as well.

[Von Greenbach]

it should have a date to remedy by (the date doesn't have to be underlined), im fairly sure it should also say how much you have to pay to remedy as well.

I've deleted the amount outstanding if that's what you mean.

 

Also I deleted that date when it was sent, not sure whether this is valid or not, sorry but I don't understand thigs very well

[creditcardmug]

I think it should say something like "to remedy the breach you must pay £xxx before datexxx", to be valid.

 

See what others think, i can post up the full monte on this later if you want, let me know.

[Von Greenbach]

OK thanks, I'd be grateful for any further advice, NR are in the process of obtaing a CO (I have a court date) if this DN is not correct, then the CCJ and any futher action they are taking cannot be legal, am I correct?

 

NR have put me through hell, if I can stop them in ther tracks I'd be more than happy.

[creditcardmug]

Ok ill post up everything i have on this shortly

[postggj]

error

Edited December 4, 2008 by postggj
error

[creditcardmug]

This is an extract from a defence i used written by pt concerning Default Notices, next ill post up anything i can find in the CCA 1974 on DNs.

 

 

 

30. In addition to the credit agreement being irredeemably flawed, it is submitted that the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) See attached exhibit CM6

 

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

 

32. I refer to the date of the letter as being the 29/11/ 2007; it is denied that the Default notice was received on the 29/11/ 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

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

 

43. 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.

 

44. 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)

 

 

[creditcardmug]

Section 88

 

 

88. Contents and effect of default notice.

— (1) The default notice must be in the prescribed form and specify— (a)

the nature of the alleged breach;

 

(b)

if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

©

if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

[creditcardmug]

Section 87

 

 

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.

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

[creditcardmug]

Section 89

 

 

9. Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

[rory32]

This really is the same info as creditcardmug has posted but may be a little easier for you to follow.

 

A default notice must contain all of the necessary information. This includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: 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
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau
  

Also as of 1st October 2006 the period of notice to remedy the breach was increased from 7 days to 14 days from the date of service of the default notice. The CCA quite clearly states that the creditor shall not take action such as mentioned in s87(1) before the date so specified or before those 14 days have elapsed.

[creditcardmug]

Thats all i have, it seems to me though, there is already a CCJ, so the first thing you would have to do is get it set-aside, you would need grounds to do that, so you would need to sort out on what grounds you are making the set-aside application.

 

Once set-aside you can then defend all over again using the flawed DN as part of it.

 

Thats my view at the mo but im no expert and i dont know what, if anything can be done at the hearing you are about to attend.

[Von Greenbach]

Thats all i have, it seems to me though, there is already a CCJ, so the first thing you would have to do is get it set-aside, you would need grounds to do that, so you would need to sort out on what grounds you are making the set-aside application.

 

Once set-aside you can then defend all over again using the flawed DN as part of it.

 

Thats my view at the mo but im no expert and i dont know what, if anything can be done at the hearing you are about to attend.

 

WoW, I'm so thankful to you for all that information, I only wish I could digest it, I mean no offence to you by that, it's just somethings are way out of my depth / intelegence level.

 

Thanks to everyone who's given me some advice.

[semyaza]

Hope you dont mind me butting in . But are the underlines absolutely required? I have a missing underline on 'NOT' on my fraudulent DN.

 

Thanks.

[creditcardmug]

Hope you dont mind me butting in . But are the underlines absolutely required? I have a missing underline on 'NOT' on my fraudulent DN.

 

Thanks.

 

Yes the underlines are required where shown above, i was just commenting where someone suggested the date had to be underlined

[Von Greenbach]

Hi CCM

Please forgive me if I sound stupid, but on my DN is it a valid DN?

If it's not, I will try and get my head round the legalities / legislation next.

I have a further question which depends on the answer above

Thanks for your advice.

[creditcardmug]

Well i dont think its valid, for the following reason....

There is no DATE by which the breach must be remedied...the Act says there must be, as in....

 

details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

It just says "within 14 days of this notice"...so what date is that?..its no good going from the date a the top, because you couldn't have got it on that day.

[Von Greenbach]

Well i dont think its valid, for the following reason....

There is no DATE by which the breach must be remedied...the Act says there must be, as in....

 

details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

It just says "within 14 days of this notice"...so what date is that?..its no good going from the date a the top, because you couldn't have got it on that day.

Ah ha, right Ok, sorry you had to make it simple, but it's the only way I understands things.

 

So my next question, do I apply to have this CCJ set aside on the basis that the DN is invalid?

[creditcardmug]

Well what happened in the original claim?..did they get judgement by default?

or did you defend and lose? Is the agreement ok,or is there something wrong with that as well?

[Von Greenbach]

Well what happened in the original claim?..?

CCCS submitted a written defence, I wasn't given an opportunity to defend myself

did they get judgement by default??

They rejected the offer made by CCCS, which I've been paying for 12 months to them, so they were automatically awarded the case, which generated a CCJ, they then went for the jugular by applying for a CO, I've requested that to be set aside, and the case has now been transfered to my local CC for a hearing.

Is the agreement ok,or is there something wrong with that as well?

I've requested my CCA, and waiting for it to arrive.

[creditcardmug]

Right, so is this hearing to set-aside the CCJ...or a hearing to consider their application for the CO...or both?..do you know what will happen at this hearing?

[Von Greenbach]

It's to set aside the CO application and something about a redetermination order, 2 issues in one hearing

Edited December 5, 2008 by Von Greenbach

[creditcardmug]

Just been reading your other thread, it seems you've been stuffed by CCCS, who basically work for the banks anyway...but that's another story

 

I don't know much about the technicalities concerning charging orders, but i see FF has been helping you...obviously knows a lot more than me about it.

 

I think the redetermination is to look at your financial circumstances, and set an amount for you to pay each month... and the set-aside CO application speaks for itself.

 

As for trying to get the ccj set-aside you need grounds to do that, im not sure whether CCCS handling it would be sufficient...also if the defective DN was the only thing you could defend on...well you need other opinions as to whether you could win on that alone.