VG - Vs Northen Rock - Charging Order

[42man]

With no date on the DN, then you can't tell how long the notice gives to remedy the default. !!

[42man]

Did you edit the date off ? or did it arrive with no date on it ?

[Von Greenbach]

OK so here's the POC

 

 

And heres the DN

 

(I) removed the date in case spying eyes are watching, although the date it was generated is still on the original

 

[Von Greenbach]

Is the POC also incorrect? as it states "The account is regulated by the Consumer Credit Act 1974 and a default has been served in accordance with section 87 of the act and has not been complied with"

[caro]

I'm not clear what you're asking about. 42man says the prescribed terms seems ok, and FB says the PPI seems to stack up.....

[Von Greenbach]

I'm not clear what you're asking about

tbh, I've no idea as I'm a complete numpty on here, I'm like a lost lamb

 

One of the members suggested I alerted it, so I did and I'm really sorry if I acted in error.

[caro]

You have nothing to apologise for. You need help and you've asked for it. I'm useless on the CCA stuff, but from what has been said, it seems this CCA is valid so the debt is enforceable. Are you able to pay it or is that the problem?

 

Just trying to find out what you're aiming for.

[Von Greenbach]

I think there may have been an issue with the PPI

 

Because of that I asked on the insurance board, seems I may have been mis sold PPI so have been told to get a SAR of which I'll do after the holiday period.

 

As for paying the debt, I'm OK with it as I'm on a DMP

 

Thanks for offering assistance.

[caro]

No probs. If you find there has been something missed on the thread don't hesitate to say.

[Von Greenbach]

Hows this?

 

Facts surrounding my case

 

Entered DMP December 2007, 10 creditors all OK even NR

 

March 2008 none stop telephone harassment from NR

 

April 2008 telephone harassment letter sent to CEO NR

 

August 2008 Court papers received

 

DN received which I believe is incorrect

 

Somewhere along the line, I’ve been informed I have a CCJ connected to this debt although this is not showing on my credit file when I checked online yesterday with Experian I have defaults on my credit file but none connected to this debt.

 

CCA requested – they replied with 1 piece of paper which I think has prescribed T&Cs

 

Subject Access Request request sent, although 14 days are up on Christmas day.

 

In the xxxxxxxx County Court

Claim number

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

VG - Defendant

 

DEFENCE

 

1. I deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

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 particularized 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 account number of the agreement, 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.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

BACKGROUND TO CLAIM

4 This claim appears to arise from an account I opened on or around DATE

5. During the period in which I operated this account, I encountered significant problems in being able to maintain the monthly repayment. I engaged PayPlan, a debt management company, in order to formulate and manage a Debt Management Plan

6. A Debt Management Plan is an informal arrangement in which any income after the basic necessities for survival are divided in a pro-rata fashion amongst creditors.

7. The claimant is a consumer credit license holder and is required by law to abide by the requirements of the OFT Debt collection guidelines. This guidance is located at http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf , and was updated in 2006.

8. I would bring the courts attention to the following sections of guidance:

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

2.6 Examples of unfair practices are as follows:

…

f. pressurizing debtors to pay in full, in unreasonably large installments, or to increase payments when they are unable to do so

9.The OFT Debt Collection Guidelines state as an unfair practice:

OFT 2.2g

ignoring or disregarding debtors' legitimate wishes in respect of

10. I therefore put the claimant to strict proof that they behaved fairly in demanding full repayment of money when they had a statement of affairs that expressly showed such repayment was not possible.

11. Northern rock is a signatory of the Banking Code, and has voluntarily agreed to abide by its requirements. It is my belief that abiding by the banking code is an implied obligation of the contract, or that it is enforceable in equity it. The terms of the banking code are laid out at http://www.bankingcode.org.uk/pdfdoc...ING%20CODE.pdf

12. I would like to refer to the section on Financial Difficulties set out in

point 14

14.1 We will consider cases of financial difficulty sympathetically

and positively. Our first step will be to try to contact you to discuss the matter.

14.2 If you find yourself in financial difficulties, you should let us know as soon as possible. We will do all we can to help you to overcome your difficulties. With your cooperation, we will develop a plan with you for dealing with your financial difficulties and we will tell you in writing what we have agreed.

14.3 The sooner we discuss your problems, the easier it will be for both of us to find a solution. The more you tell us about your full financial circumstances, the more we may be able to help.

14.4 If you are in difficulties, you can also get help and advice from debt-counselling organisations. We will tell you where you can get free money advice. If you ask us to, we will work with debt-counselling organisations, such as Citizens Advice Bureaux, money advice centres or the Consumer Credit Counselling Service. Their contact details are as follows.

….

You should also be aware that there are other companies that charge a fee for managing your debts. It is your responsibility to check the fees that may be charged before asking these companies to act on your behalf.

14.5 If you have debts with many creditors, a debt-counselling organisation may complete a Common Financial Statement (or equivalent acceptable to us) on your behalf, which we will accept as the basis for negotiations with you in drawing up a debt-management plan.

14.6 In certain circumstances we may pass your debt to another organisation or debt-collection agency. We will always choose reputable firms which also agree to follow the Code when arranging repayment.

14.7 In other circumstances, we may sell your debt. We will always choose reputable firms if we do this.

14. I did in fact contact the claimant, and engaged PayPlan (a reputable no fee company suggested by northern rock) in order to negotiate a DMP with the claimant. Payplan and the creditor came to an arrangement on my behalf.

15. I made regular payments, via payplan of the agreed amount in relation to the DMP every month.

16. Despite this agreement, Northern Rock unilaterally decided to end the DMP, and sent me a demand letter for the full sum of money owing. I again sent a current statement of affairs and increased my payments to the point that it caused substantial hardship to me.

17. I therefore believe that the claimant has not abided by the overriding objective in this matter, or in accord with implied terms of the contract

CONFUSION ON THE VALID AMOUNT OF CLAIM

18. There seems some substantial amount of confusion about what the claimant is actually claiming they are entitled to:

18.1 In the court form they claim £xxxx, and arrears to the extent of £xxxx

18.2 In the deault letter, dated xx xxxx 2008, the claimant states my indebtedness as £xxxxx and arrears to the extent of £xxxxx

18.3 In a demand letter dated xx xxxx 2008, the claimant states my indebtedness as £xxxx and arrears to the extent of £xxxx

18.4 In a letter dated xx xxxx 2008, marked as without prejudice in response to a disclosure request on xx xxxx 2008, the claimant states my indebtedness as £xxxxx with arrears of £xxxx

 

19. Notwithstanding that the letter was marked without prejudice, I do not believe this letter is privileged information since:

19.1 It was written in response to a request under the disclosure requirements of the Civil procedure rules and,

19.2 It includes admissions of a purely of a factual nature, and was not part of any settlement negotiations.

20. I will discuss these issues further in the section marked “Default Notice” below, but notwithstanding that I put the claimant to strict proof as to the amount of any indebtedness.

21. In particular, in the letter mentioned in section 17, the claimant produced a statement of account in which the proper rebate of interest on termination was not given, and it seems clear to me that the claimant has filed a claim based on the entire interest charge of the loan, and not the proper rebate.

22.1 I respectfully refer the court to Consumer Credit (Rebate on Early Settlement) Regulations 1983 (SI 1983/1562) as amended

2 Entitlement to rebate

(1) Subject to the following provisions of this Regulation, the creditor shall allow to the debtor under a regulated

consumer credit agreement a rebate at least equal to that calculated in accordance with the following provisions of these

Regulations whenever early settlement takes place, that is to say whenever, under section 94 of the Act, on refinancing,

on breach of the agreement, or for any other reason, the indebtedness of the debtor is discharged or becomes payable

before the time fixed by the agreement, or any sum becomes payable by him before the time so fixed.

22. Therefore I put the claimant to strict proof as to its right to claim the entire amount of total charge for credit.

 

DEFAULT NOTICE

23. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended (“Default Regulations”)

24. Reg (2) of the Default Regulations states the requirement of a default notice

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

25. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

26. With regard to the default notice, I would quote paragraph 3 of schedule 2:

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.

27 The creditor in the default notice states that In accordance with clause 4 of my terms and conditions, that monthly payments have not been maintained, and that arrears of £xxxx are now outstanding.

28. I deny that I have breached clause 4 of the agreement which states

4. Rebate on Early Settlement

If the outstanding balance of the Total Amount Payable is repaid early you may be entitled to a rebate of charges. Details are available from Northern Rock personal Loans – Selectapost 19, Rotherham, S97 3GD

29. I further put the claimant to strict proof

29.1 that the amount of any arrears is correct and,

29.2 that the amount of any balance on the agreement is correct, and that the failure to include the amount of any rebate in the default notice doesn’t invalidate the said notice under paragraph 8 of the Default Regulations

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

30. I particularly note that the significance of failing to include the rebate in any default / court claim is that under term 5 ii it would enable Northern Rock to charge interest from the date of judgement, not only on the principal sum owing, but also on interest that it would have accrued over the entire life of the agreement.

31. The consequence of a incorrect default notice are laid out in s87(1) of the consumer credit act 1974:

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

…

32. Consequently, in the absence of a valid default notice, I deny the claimant has any right to demand earlier payment of any sum, or terminate the agreement.

33. I am aware this may seem very technical law – indeed it is very dry – and may seem almost trivial. My understanding is that that parliament and the courts implemented such strict requirements as to the contents and form of a default notice and the requirement of such a notice to be exactly adhered to is that it must be crystal clear to the debtor what the nature of the default is, how much is outstanding, what the nature of the breach is, and how to rectify it.

34. I do not need to tell the court that the consequences of a default – even if not taken on to court– are that the debtor may find it impossible to get reasonably priced credit, purchase a home, or carry out normal daily living. In the case of court enforcement, a default could lead to bankruptcy or the loss of your home.

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

  
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

  
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

  
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

  
  

• 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 a 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

  
  

IMPROPERLY EXECUTED CREDIT AGREEMENT

35. In this section I will refer to the Consumer Credit (Agreements) Regulations 1983 No 1553 as amended (“Agreement Regulations”)

36. The agreement is improperly executed for the following reasons:

36.1 It does not contain the proper heading specified under REG 2(1) column 2 1©

 

36.2 It does not contain the interest rate (rather then the APR) under REG 2(1) column 1 9A, column 2:

“(2) The rate of interest on the credit to be

provided under the agreement or, where more

than one such rate applies, all the rates in all

cases quoted on a per annum basis with details of

when each rate applies.”

36.3 The signatory document does not contain the warning statement in schedule 2, column 1 (3)

2 All types. MISSING PAYMENTS

Missing payments could have severe consequences and make

obtaining credit more difficult.

33 the court is able to consider the impact of these deficiencies in the agreement under s127 of the consumer credit act 1974.

CHARGES

37 It is denied that any accurate Default Notice in the prescribed format was received and I put the Claimant to strict proof that said document was accurate.

38 In respect of that this is denied, during the period in which the Account was operating the claimant debited £xx to the Account in respect of purported breaches of contract on the part of the Claimant and charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

39 The defendant contends that:

39.1 The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

39.2 The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

SUMMARY

40 Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

41 I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

42 Further, in the claimants particular of claim, the claimant states I failed to make any payment under the agreement after the default notice and demand letter. For the record, I made regular monthly repayments via Pay Plan, and increased the payment to the claimant in the month prior to legal action. I have at no point refused to pay the claimant what money I could. I think, given my personal situation and my willingness to pay what money I could under the agreement despite the advice of several debt charities to file a bankruptcy petition should show that I intended before action to repay as much of this loan as possible.

Statement of Truth

 

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

 

Signed …………………

Date

[surfaceagentx20]

The DN is deffective. Also, is the date of the DN a date prior to the date on which proceedings began in August 2008? If so, how many days prior?

 

x20

[Von Greenbach]

Hello x20

 

Is it safe for me to put the dates here, I don't want the otherside to be able to identify any information.

[surfaceagentx20]

I can not give any warranties. However, my question does not need answering with dates if you do not wish to reveal dates.

 

x20

[Von Greenbach]

If and this is a huge if I was successful at having a CO application dismissed, would the interim CO that's been placed on my property be removed?

[flyingdoc]

if the CO is for the loan that the interim co has been placed for then I would say yes. the interim order will have only been placed to allow both parties to prepare their case for a full hearing.

IF you win your case - make a point of asking the judge dismissing the application also to order the interim order removed.

[Von Greenbach]

IF you win your case - make a point of asking the judge dismissing the application also to order the interim order removed.

Thanks for the confirmation, would that be a verbal request or a paragraph I enter within my defence?

[flyingdoc]

I would add it to the end of your defence that if your defence is successful you would request that the interim order be removed.

[Von Greenbach]

OK thank you FD

[sequenci]

Hello there. At the hearing the judge will have the option to do one of the following:

 

- Make the charging order final

- Discharge the Interim Order and dismiss the Charging Order application

- Decide any issues in dispute

- Direct a trial of any such issues

 

So, if you manage to stop the Charging Order your Interim Order should automatically be discharged.

 

What are your arguments against the Charging Order?

[Von Greenbach]

Hi Sequenci

 

Thanks so much for your support

 

This is my case, I'm hoping to stop them due to a defective DN, how I get that over to the judge I've no idea even though I created a defence, it's a copy and paste from a defence PT (Paul site team) offered to another member, but my circumstances are more or less very similiar

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/174146-court-case-re-co.html

 

Any help / advice you can offer will be gratefully appreciated

[Von Greenbach]

Hi

 

I never had a reply to my earlier post on the site, maybe someone here can answer, I'm starting to chase up outstanding queries, as my CCA is seems enforceable, would it be OK if I sent the following letter re being mis sold PPI, or should I do a Subject Access Request?

 

Dear Sir / Madam

 

I purchased the above policy from you in XXXX in connection with the [loan agreement] referenced above.

 

I believe that I was mis-sold this policy for the reason(s) given below, and wish you to investigate my complaint according to your normal complaint procedures.

 

I was not told that the insurance was optional.[/font]

 

I was led to believe that my application for credit would be rejected if I did not take out the insurance.

 

The policy exclusions were not explained to me either before or at the time I took out the insurance. I was therefore unable to make an informed decision as to whether this insurance was appropriate for me.

 

I now believe the insurance was unsuitable for me as I suffer with Asthma, and arthritis, at the time I took out the policy I was not made aware of the specific exclusions relating to on going health issues.

 

If my complaint is upheld I require a refund of all premiums paid to the policy, plus any additional interest charged to me because of the PPI. I would also like to claim statutory compensation in view of the fact that I have been deprived of the use of this money.

 

Yours faithfully

[cerberusalert]

Send that off, it's fine. If they refute it you can always do a CCA at a later date, besides they don't know whether you have a copy of your agreement anyway:D

 

There has been such a rumpus with misold PPIs just lately (famously with Egg), I really don't see you having much of a problem really.

[cerberusalert]

It's better you doing it in this way because not only can you reclaim your misold PPI, once you've collected that money....you can then crucify them if the CCA is unenforcable. :D

[Von Greenbach]

Send that off, it's fine. If they refute it you can always do a CCA at a later date, besides they don't know whether you have a copy of your agreement anyway:D

Hi

 

I requested my CCA which they sent I posted on here sometime ago, someone said it was valid.

[cerberusalert]

Depending on the format of the CCA it could be invalid by virtue of you being misold a PPI