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VG - Vs Northen Rock - Charging Order


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Yesterday I received a copy of my CCA, no postage marks on the envelope, hand writing on the envelope was appalling, inside the envelope just one piece of paper containing my "CCA" no T&Cs enclosed, due to legal proceedings against me, I've issued a CPR request, should I just ignore the CCA that came yesterday?

 

Hello VG,

 

The lack of T&Cs mean that they have not complied with your request.

 

What about the CCA itself? Are the prescribed terms on it?

 

What type of CPR request have you made, to request what exactly?

 

SH

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Hello SH

The lack of T&Cs mean that they have not complied with your request

OK

What about the CCA itself? Are the prescribed terms on it?

I believe so, Should I wait for anther CCA to come through as I've requested it within the CPR below?

What type of CPR request have you made, to request what exactly?

It was one 42man had posted on another thread, does CPR 18 make sense as I'm sure that's what I sent.

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Found it

 

This is what I sent to their solicitors

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

PART 18 REQUEST FOR INFORMATION

 

I have received a recent court claim from your organization. In order to file a defense and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defense and counter claim.

 

Yours sincerely

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You have some absolutely excellent advice on this thread, especially from FunkyFox, who has covered just about everything you need to know.

 

The only question was whether you could try to get the judgment set aside. If the CCA is enforceable, it seems unlikely that you could. Was there any default notice issued on this?

 

The actions of CCCS in this have been pitiful. You have, in effect, had judgment passed against you without you having any chance to defend. Even so, you would need a plausible defence of some kind to be able to get it set aside.

 

The other question I just have to ask is - Have you thought about going bankrupt? If there is no equity in the property, you probably don't have that much to lose. If only two of your creditors have produced unenforceable agreements, and you can't even stop paying them unless you escape from CCCS, you are going to spend the rest of your life having these rats gnaw away at your health and your life.

 

At least BR would get the leeches off your back and give you a fresh start. Jobs, houses, cars, can be replaced in time. Your health and your life can't.

 

SH

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Hello SH

You have some absolutely excellent advice on this thread, especially from FunkyFox, who has covered just about everything you need to know
.

I agree, the advice from FF has been excellant, my problem being, I'm not that inteligant and trying to digest and understand what people are saying is difficult for me.

The only question was whether you could try to get the judgment set aside. If the CCA is enforceable, it seems unlikely that you could. Was there any default notice issued on this?

Yes, there was a DN issued, this is it http://i372.photobucket.com/albums/oo166/WhatsUp_bucket/NR.jpg

 

I'm hoping to have all there claim thrown out because the DN is faulty.

The actions of CCCS in this have been pitiful. You have, in effect, had judgment passed against you without you having any chance to defend. Even so, you would need a plausible defence of some kind to be able to get it set aside.

I've learned a lot in the last few weeks.

The other question I just have to ask is - Have you thought about going bankrupt? If there is no equity in the property

We do have equity not soure how much thouh

At least BR would get the leeches off your back and give you a fresh start. Jobs, houses, cars, can be replaced in time. Your health and your life can't

 

We went through an IVA process last year, but backed out just before signing the agreement, due to the current employment situation.

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Hi Von Greenbach,

 

I have just come across a message you tried to reply on my dead thread with NR.

 

Ok this is a long shot but i emailed the ceo before the court case and explained the situation as unfair.

 

That really helped so here are the email addresses you need my friend.

 

 

The email address is andy.kuipers@northernrock .co.uk,

[email protected] o.uk,

 

Good Luck and let me know how you get on.

 

Kind Regards

 

Womble

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Hello womble

 

I read your complete thread and I’m so pleased it worked out well for you in the end.

 

The one question I have, although if you’d rather not answer I understand, have they given you a guarantee they will never pursue litigation against you in the future?

 

I’m a complete novice in this field, but from the little I understand, it’s my belief I have a strong defence, I’m waiting for the experts on here to confirm that for me.

 

I suffer from a psychotic condition, I informed NR of this when I registered my telephone harassment letter, I feel NR have behaved disgracefully towards me given my circumstances and some parts of the defence PT and tomtern offered you I’m hopefully going to be using when my case comes up.

 

I registered a written complaint with the CEO at NR against the continuous harassment telephone calls I was receiving; it’s my belief in response to that they have chosen to create additional psychological pressure by issuing court proceedings which in my opinion is totally uncalled for.

 

It’s for NR to prove the action they’re taking “is warranted” that being said, I fully understand and accept the decision and process you chose which appeared right for you.

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Hello Von,

 

So sorry to hear the way they have treated you and it is a disgrace that companys can get away by doing this. Did you ever get a reply from the CEO regarding the harrassement.

Will Nr one day take me again to court, my answer is never say never.

The problem i had was that i was a house owner at the time and they wanted to make sure they could try to get a charging order against me but the cag team were fantastic as you know by reading my thread but i am now in battle with the Natwest and sadly this is going to court but dont give up my friend because you have some wonderful people on here for support and if you need any more advice please just ask me because i know how you feel.

If you have a good defence then your be fine and a charging order would only be a last resort i.e if you fail to pay the ccj.

When is your court date ?

 

Kind Regards

 

Womble

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In reference to CPR18 request 14 days to reply, is that 14 working days and what happens if th 15th day is Christmas day?

 

Also, I've been informed I may have been mis sold PPI and the member suggested I do a SAR for £10.00, as I have a CPR18 in progress, do I need to do a SAR?

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Did you ever get a reply from the CEO regarding the harrassement

Mo, but I know they received it because the calls stopped, and I've never had once since, and my complaint was in March this year.

 

If you have a good defence then your be fine and a charging order would only be a last resort i.e if you fail to pay the ccj.

I'm on a DMP which they've rejected the offer (I'm continuing to pay them tho, they've not requested my monthly payment be stopped

When is your court date?

January 2009

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I have difficulty digesting information and as my court case is looming I’m trying to create some kind of defense to allow myself sufficient time to get my head round it.

 

Below I’ve copied and pasted a defense that PT (Paul site team) offered to another member in the same situation as me

 

Could someone please look at the defense and tell me if I need to add / delete anything, I’ll give a couple of facts first which may or may not be relevant to 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.

 

 

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

Edited by Von Greenbach
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Hi Von,

 

I would say that the judge would look at your cicrumstances and would say that you are paying what you can only afford and you are using a 3rd party to pay them each month. I am amazed these companys can just think the judge will side with them but the worse case is your have a ccj which may happen to me but have you posted any information of your case to the cag team yet, to see if the nr have done it by the book.

 

Womble

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VG, I suggest adding some higher court case law might help...

 

Some examples include

 

DEFAULT NOTICE

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

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And possibly this if excessive charges have been added

 

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

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