Nationwide County Court claim

[car2403]

Check this out;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/208997-restons-hfc-bank-myself-4.html#post2316838

[homerj]

UPDATE

 

Instead of a SJ i filed an amended defence and on Mon 3rd by email to claimants solicitor and by hand to the court. Got an email back from solicitor saying

1. the time had elapsed for me to file a defence and counterclaim and the court had not granted permission

2.the court had not granted permission to file an amneded statemnt of case in accordance with CPR13.2

Cases where the court must set aside judgment entered under Part 12

 

13.2

 

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

© the whole of the claim was satisfied before judgment was entered.

How does my amended defence relates to this?

 

3.thier client has an application for SJ which is pending

 

On friday 7th i recieved an amended witness statement due to 2 errors in the original. i can't check these errors as when i did i realised the pages were missing from the copies attached to the N244 form sent to me by the court and claimant.

Late on Fri evening the claiments solicitor emailed a Skeleton argument writtten by a barrister!!

I am present making notes to use in court tomorrow so if anyone can give me pointers/encouragement as to what to have preparedand what to expect I would be gratefull (MDAW - i have read your thread and have made notes)

[car2403]

What was the amended defence?

 

An amended defence would only operate if they were unsuccessful in getting SJ.

 

Will also be useful to see that WS.

 

What is the hearing for tomorrow? Their SJ application?

[homerj]

car2403

 

the hearing tomorrow is for the SJ application

 

do you want me to post the amanded defence and WS or PM you

[car2403]

Is there a reason it can't be posted? Just remove the personal details. If there is, PM it to me.

[homerj]

copy of witness statement attached

 

WS for 10th Aug 09 page 2.pdf

 

WS for 10th Aug 09 page 3.pdf

 

WS for 10th Aug 09 page 4.pdf

 

WS for 10th Aug 09 page 5.pdf

 

WS for 10th Aug 09 page 1.pdf

para 5. the account number on the CCA is different

para 8. the balance of the account as of the date on the Ws was a lot lower

para 10. i have a copy of this DN and the date on it is the day before it was sent (this was the third DN sent)

para 13. the balance of the account at the time of the claimant issuing proccedings was lower and a payment has been made sinc.

para 18. the only particulars of claim i have prior to April is the one on the actual claim form. the so called 'copy' is dated April

 

An amended defence would only operate if they were unsuccessful in getting SJ. do you still need to see it?

[citizenB]

at point

22.2 they state the Default notice advised the breach must be remedied within 14 days

The regs say.....

From pt2537

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.

I think that is pretty conclusive that the Regs require a date not the words "fourteen days"

By stating "within 14 days" on the Default notice they have not allowed any delivery allowance which is +2 days for 1st class mail and +4 days for 2nd class.

Postal regs say......

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

This states:-

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any band 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

HTH

[car2403]

An amended defence would only operate if they were unsuccessful in getting SJ. do you still need to see it?

 

Yes

[homerj]

thanks CB, can you give me a link to the 1983 regulations as i want to produce them word for word as regards the defective DN and also unenforcable CCA.

 

Car 2403Amended defence and cover letter below

 

Homer J Cover Lette Nationwide Amend Defence.pdf

 

Homerj Nationwide Amended defence.pdf

[citizenB]

You will find all the regulations in the following link

 

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

 

HTH

 

There are quite a few links on that page so you will have to scroll down.

[car2403]

I think you should have submitted that Amended Defence as your Witness Statement against the SJ Application.

 

I'm just a wee bit concerned that you haven't rebutted the statements made in the SJ Application, paragraph by paragraph.

 

Nevermind, though, I'm sure you'll get away with that as you're a LiP. Have you served the other side a copy of it, though? If not, send them it, now, by email. Hope you get a decent Judge

[homerj]

Thanks Chris, they have got a copy of the amended defence and replied as in post no 127

UPDATE

 

Instead of a SJ i filed an amended defence and on Mon 3rd by email to claimants solicitor and by hand to the court. Got an email back from solicitor saying

1. the time had elapsed for me to file a defence and counterclaim and the court had not granted permission

2.the court had not granted permission to file an amneded statemnt of case in accordance with CPR13.2

 

Quote:

Cases where the court must set aside judgment entered under Part 12

 

13.2

 

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

© the whole of the claim was satisfied before judgment was entered.

How does my amended defence relates to this?

 

3.thier client has an application for SJ which is pending

 

i was unable to rebutt thier witness statement as it was incomplete when i recieved it from both the claimants solicitor and the court.

i am present writng my responce to the Skeleton argument sent by thier barrister via the solicitor. Should i continue with this or start on the witness statement? do i need to email them when it is done or just use it in court tomorrow?

Edited August 9, 2009 by homerj
spelling mistake

[car2403]

Your witness statement would just be formatted to respond to the SJ application - have a look back at my HFC thread to see how I laid mine out if that helps.

 

Lots of your Amended Defence will be helpful in pulling it together.

 

You do need to serve a copy on the other side - it should have gone 3 days ago, but don't worry about that. I'd say email them with it tonight and make sure you give the Court Usher a copy of it in case the Judge wants to read it before you go in for the hearing tomorrow. (He may give you grief because you haven't disclosed it already)

[homerj]

Thanks for your advice Chris but do you think i should respond to the witness, the skeleton argument or both in the same statement?

[car2403]

You're responding to the Application for SJ. Their WS/Skelly should support their Application.

[Docman]

Honerj

I agree with Chris in that your amended defence should have been in the form of a witness statement to rebut their SJ application. Too late now but let's see what can be done. Can I suggest

1.Your aim in an SJ hearing should be either to have the application thrown out or at least proceed to a full trial where the claimant is ordered to produce documents their usually haven't got or wouldn't stand up to scrutiny.

2. Point out to the Judge that the claimant only emailed a copy of their witness statement supporting their application on Friday evening and that you have not had sufficient time to take advice on their statement. Download and take a copy of the Civil Procedure Rules (no 6) with you.

3. Not withstanding that, tell the judge you have prepared your own statement. I think I am correct that as a litigant in person appearing in court, you only need to send in a witness statement if you are exhibiting documents of your own. The claimant, since they are not a ‘real person’ need to have their ‘words’ spoken to the court by way of a witness statement. If you do want to file a witness statement, take enough copies with you to give one to the court clerk, have one to hand to the judge and one to the claimant's solicitor, not forgetting one for yourself.

4. Prepare your own skeleton argument that you should effectively regard as your 'speech ' to the Court.

5. Take two copies of the sections of the Act, the Regulations and any cases you have quoted with you to court, one for you to use and one to hand to the judge as you refer to the case etc.

6. You should reformat your amended defence to provide the material for both your witness statement and your skeleton argument.

7. At this stage, the two important points you need to get over to the judge. The first is that the ‘agreement’ is only a ‘Priority Application’ form. It does not in itself contained the prescribed terms and it is not linked to the terms & conditions now produced. It does not comply and therefore the court cannot make an enforcement order.

8 The second point to impress on the judge is that the Default Notice does not allow a clear 14 days after service as the statute and case law require.

Finally, as a LiP, you should be given some leeway. Chances are you will get a judge who is nice and understanding but just in case you don’t, prepare yourself to deal with a judge who is on the claimant’s side, who wants to get out of court and onto the golf course ASAP, or hwo just thinks LiPs are a waste of space. Be respectful to the judge and court, don’t let the other side get to you and try to bully you into submission. Remember, they have gone down the SJ route because they know that they cannot win as the law stands because they ‘cocked’ up the agreement in their greed to get you signed up to the credit card in the first place.

[Docman]

Honerj

I agree with Chris in that your amended defence should have been in the form of a witness statement to rebut their SJ application. Too late now but let's see what can be done. Can I suggest

1.Your aim in an SJ hearing should be either to have the application thrown out or at least proceed to a full trial where the claimant is ordered to produce documents they usually haven't got or wouldn't stand up to scrutiny.

2. Point out to the Judge that the claimant only emailed a copy of their witness statement supporting their application on Friday evening and that you have not had sufficient time to take advice on their statement. Download and take a copy of the Civil Procedure Rules (no 6) with you.

3. Not withstanding that, tell the judge you have prepared your own statement. I think I am correct that as a litigant in person appearing in court, you only need to send in a witness statement if you are exhibiting documents of your own. The claimant, since they are not a ‘real person’ need to have their ‘words’ spoken to the court by way of a witness statement. If you do want to file a witness statement, take enough copies with you to give one to the court clerk, have one to hand to the judge and one to the claimant's solicitor, not forgetting one for yourself.

4. Prepare your own skeleton argument that you should effectively regard as your 'speech ' to the Court.

5. Take two copies of the sections of the Act, the Regulations and any cases you have quoted with you to court, one for you to use and one to hand to the judge as you refer to the case etc.

6. You should reformat your amended defence to provide the material for both your witness statement and your skeleton argument.

7. At this stage, the two important points you need to get over to the judge. The first is that the ‘agreement’ is only a ‘Priority Application’ form. It does not in itself contained the prescribed terms and it is not linked to the terms & conditions now produced. It does not comply and therefore the court cannot make an enforcement order.

8 The second point to impress on the judge is that the Default Notice does not allow a clear 14 days after service as the statute and case law require.

Finally, as a LiP, you should be given some leeway. Chances are you will get a judge who is nice and understanding but just in case you don’t, prepare yourself to deal with a judge who is on the claimant’s side, who wants to get out of court and onto the golf course ASAP, or hwo just thinks LiPs are a waste of space. Be respectful to the judge and court, don’t let the other side get to you and try to bully you into submission. Remember, they have gone down the SJ route because they know that they cannot win as the law stands because they ‘cocked’ up the agreement in their greed to get you signed up to the credit card in the first place.

[Docman]

Sorry abou the double post. Just got back from trip on Ryanair, so I am still flying somewhere over Stansted - I thnk!!

[homerj]

Thanks Chris and Docman. What do you think of the WS below. not sure about point 42

IN THE XXXXX COUNTY COURT CLAIM NO: XXXXXXX

 

BETWEEN

 

Nationwide Building Society

 

 

CLAIMANT

 

 

And

 

 

 

HomerJ

 

 

DEFENDANT

 

 

*******************************

 

 

WITNESS STATEMENT

 

 

****************************

 

 

1. I, Homerj am the defendant in this case and make the following statement as my witness statement in response to the Summary Judgement application made by Nationwide Building Society. I make this statement from my own knowledge or experience, except where reference is made to specific documentation, attached in the form of an exhibit, in which case this statement is made in support of that documentation

2. The late submission of this witness statement is due to the witness statement attached to the Application notice sent by both the court and the claimant being incomplete. There pages 2 and 4 are missing. Only receiving their amended statement, now complete, by email on my return home from work on Friday evening 7th August 2009.

The Claimants Application for Summary Judgement

3. I object to Summary Judgement being awarded to the claimant for the reasons stated herein.

4. Paragraph 4 of the Witness Statement is admitted that, in the sense that I applied for and was given a credit card that there was an agreement between myself and Nationwide Building Society. I do not admit that such agreement was reduced to writing. The Precise terms and date of any such agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement and is put to strict proof that a written agreement is in existence.

5. In Paragraph 5 of the WSthe account number written on the Priority Application form differs to the account number on the witness statement.

6. Paragraph 6 of the WS is admitted

7. Paragraph 7 0f the WS is denied. I admit I signed a document provided by Nationwide Building Society. It is Not admitted that signed I signed an agreement with Nationwide Building Society. It is admitted that I signed a Priority Application form but as the copy of this document is illegible it can not be said the Defendant signed an agreement indicating that he had read and fully understood the terms.

8. Paragraph 8 of the WS is denied in as much as the balance of the account is not the same as the Nationwide Credit Card Statement of the month. The balance on the statement being £XXXX, and not £XXXXX as on the WS. See attched marked HOM5

9. Paragraphs 9 to 17 inclusive of the WS are under the headings Default, The Claim and The Defence. All will be answered in the following points.

10. Paragraph 18 is admitted in as much as the documents were attached to the particulars of claim, however the claimant implies that these were served prior to XX April 2009 by the phrase ‘a further copy of the particulars of claim were sent’ The Defendant denies that he received them prior to the copy sent on XX April 2009 and furthermore the document received was dated XX April 2009, so not a copy but an original.

11. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

12. On January 2009 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence, copy attached and marked HOM01 I requested the claimant supply this information in 7 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

13. The claimant implies in the witness statement that the particulars of claim and the attached documents were served prior to my defence being entered. They failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information marked HOM02 & HOM03, and now after consideration of the documents which have been supplied I can now make a fully particularised defence to the claimants Particulars

14. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants’ particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof.

15. It is averred that the agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is denied that the Agreement is enforceable within the terms of the Act in that the Defendant avers that the agreement alleged by the Claimant does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

16. 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)

17. 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

18. It is submitted 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. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

19. 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."

20. 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

21. 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)

 

 

22. Furthermore 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

23. 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) paragraph 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."

24. Therefore I respectfully request 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

25. 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 supplied by the claimant marked SRE01 unenforceable.

26. If, which is not admitted, there is a written agreement in existence it is, for the reasons set out at paragraph 7 above, denied that such agreement is enforceable. The claimant is put to strict proof of the terms and conditions thereof

27. Further and in the alternativeIt is averred that a copy of the documentation signed by me was not provided to me at the point of signature and that, which is not admitted, if this document was the agreement it was therefore improperly executed and in respect thereof may only be enforced with leave of the Court.

28. I did not, until after the issue of these proceedings on 30th December 2009, receive a copy of the document that I had signed until 22nd April 2009. Further I recall receiving a credit card following on from the completion of the application form. I do not recall being provided with, at that juncture, any documentation containing any alleged terms and conditions. A copy of the document signed by me was not provided. The Claimant is put to strict proof that such terms and conditions were so supplied.

29. In addition to the credit agreement being irredeemably flawed, 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)

30. The Default Notice that the claimant relies on and has submitted to the court marked HOM04 is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court. This shows that this document has been altered from the original Default Notice

31. As stated in the WS the Notice upon which the Claimant also relies was dated the August 2008. If the Notice was posted by 1st class post on that date that it would be deemed to be delivered on Friday August. The Statutory period for response to this Default Notice would therefore expire on the August 2009. The Default Notice required remedial by August 2008 and consequently failed to provide the Statutory 14 days after the date of Service for remedy of the alleged breach.

32. The notice clearly states that the breach must be remedied within 14 days of the date of the default notice, not the date of service, 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. In addition to the failure of the default notice to allow the prescribed time frame, the 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.

34. 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

 

 

35. 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]"

36. The statements referred to in points 28 & 29 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

37. 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.

38. Ihe 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.......

39. The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

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

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. 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.

43. 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, 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 by unilaterally deciding to disregard a Debt Management plan despite the existence of a Statement of Affairs provided to them.

44. In addition, should it be 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 is alleged to have commenced on XXXXX this was 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.

45. I therefore submit that the Claimant is unable to seek Judgment, summarily under CPR Part 24, or any Judgment whatsoever, as unreasonable when considering matters pleaded. Also in the unreasonable behaviour of the claimant in failing to disclose the documents which were necessary in complying with not only the CPR part 16 and practice direction 16, but my ability to prepare a proper defence to the allegations made in the particulars of claim for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result

 

Statement of Truth

 

I HomerJ the Defendant, believe that the facts stated in this witness statement are true

 

 

Signed Da

[homerj]

(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.

34. 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

 

 

35. 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]"

 

Can anyone point me in the right direction where can i find the regulations which show the wording on a DN as above? The only one i can find does not have the words underlined or highlighted

[Docman]

Homerj

 

The WS up to and including paragraph 14 is fine for your statement. The rest, from paragraph 15, is your skeleton argument which you should read out in court. However, when you get to the words from the cases, don't read them out. Just refer the judge to them and give him a copy of the full case at that point. Same goes for any quotes from the Regulations or the CPR. Just refer to them, almost in passing. Let the judge pretend he knows he law. If he does you should be OK. If the judge doesnt know this area, you can thne lead him through the cases and statute.

 

Best of luck for tomorrow.

 

Doc

[homerj]

Thanks Docman, witness statement split, acts etc printed

 

Hope it goes OK

[car2403]

Give them hell!

[panty54]

Hi homerj

 

 

How did it go?

[Mydogsawestie]

Hi homerj

 

just back from a well deserved break away & was wondering how you got on??? hope to read your update soon.