Repo order help with defence needed.

[citizenB]

diddydicky and vint1954 would be the caggers to sort that query out for you, cosalt.

[cosalt]

Ok how does this look? I have obviously left out claim no.s etc.

 

 

CLAIM NO

DEFENCE SUBMITTED BY

I Respond to the Particulars Of Claim in the order laid out by the claimant.

• Hire Purchase Agreement
  

I agree that I signed a hire purchase agreement with the claimant, however the vehicle details are incorrect and the vehicle is actually a Iveco 75e15 7.5t HGV as shown on the registration document.

• Agreement Figures
  

I agree that the figures shown are correct.

• Calculations
  

I disagree with the quoted figures, at the time of alleged default the sum of £7637.84 had been paid to the claimant, leaving a balance of £1642.24, I put the claimant to strict proof that their quoted figures are correct.

• Default Notice & 5. Termination
  

I agree I have received a default notice dated 1st March 2009 from the claimant.

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

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 bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Sunday 1st March 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 4th March 2009, namely Wednesday 18th March 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 14th March 2009, which incidently is a Saturday

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. 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) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. 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 to 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 alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, at the time of alleged default the account had two outstanding payments totaling £408.06 yet the default notice states the amount as £411.26 Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 19th March 2009. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[citizenB]

The only thing I could see is.....

 

notice which would have been 14th March 2009, which incidently is a Saturday

 

That should read.. "which incidentally WAS a Sunday":)

 

I wonder if it would be wroth asking for the claim to be struck out as there is no cause of action ?

[cosalt]

The only thing I could see is.....

 

 

 

That should read.. "which incidentally WAS a Sunday":)

 

I wonder if it would be wroth asking for the claim to be struck out as there is no cause of action ?

 

Thanks again CB, can I ask for it to be struck out now or do I have to wait until they have responded to my defence?

[cosalt]

I have also changed the date of service assuming the dn was sent 2nd class, I dont have the envelope, but it is up to them. to prove otherwise. Although even first class makes it well short.

Edited March 10, 2010 by cosalt
shocking spelling !

[citizenB]

I have also changed the date of service assuming the dn was sent 2nd class, I dont have the envelope, but it is up to them. to prove otherwise. Although even first class makes it well short.

 

Absolutely, but 2nd class makes it a darn sight shorter

[cosalt]

Ok, I am going to send the defence today as posted ( with slight amendments ) My only concern is that it is too long winded? Is it better being short and concise or is it important to have as much information as possible to show that I know my stuff?

 

I can just imagine the judge having 4 pages of text to read, won't he just tut and not read it properly.

 

Cosalt

[citizenB]

Ok, I am going to send the defence today as posted ( with slight amendments ) My only concern is that it is too long winded? Is it better being short and concise or is it important to have as much information as possible to show that I know my stuff?

 

I can just imagine the judge having 4 pages of text to read, won't he just tut and not read it properly.

 

Cosalt

 

Hi Cosalt,

 

Difficult question to answer.. 4 pages ! Can you condense it any yet still keep the main points ?

[cosalt]

Ill have a go !

[cosalt]

Ok ive managed to knock a page off without losing any of the important stuff.

 

Fingers crossed !!

[cosalt]

After reading PT's excellent thread, I have shortened the defence to this:-

Any thoughts ?

CLAIM NO

DEFENCE SUBMITTED BY

I Respond to the Particulars Of Claim in the order laid out by the claimant.

• Hire Purchase Agreement
  

I agree that I signed a hire purchase agreement with the claimant, however the vehicle details are incorrect and the vehicle is actually a Iveco 75e15 7.5t HGV as shown on the registration document.

• Agreement Figures
  

I agree that the figures shown are as per the agreement..

• Calculations
  

I disagree with the quoted figures, at the time of alleged default the sum of £7637.84 had been paid to the claimant, leaving a balance of £1642.24, I put the claimant to strict proof that their quoted figures are correct.

• Default Notice & 5. Termination
  

I agree I have received a default notice dated 1st March 2009 from the claimant, however I suggest that the said default notice is invalid due to allowing insufficient time to remedy the breach. By not allowing 14 days clear notice after service as required by law, I was not given sufficient time to even obtain an appointment to seek legal advice.

The Default notice supplied by the Claimant is dated Sunday 1st March 2009, to allow service in line with the statutory requirements for service of documents, 4 working days were required to allow for 2nd Class postage. Thus the rectify date should be 14 calendar days from Friday 6th March 2009, namely Friday 20th March 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 14th March 2009.

Furthermore, the Arrears total claimed is not accurate, at the time of alleged default the account had two outstanding payments totaling £408.06 yet the default notice states the default amount as £411.26.

The 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 an 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.

I therefore put the Claimant to strict proof that any Default Notice sent to me was valid, allowed the statutory 14 clear days to rectify the breach and showed an arrears total that was accurate.

[citizenB]

It is agreed, I entered into an agreement with the Claimant. However....

 

 

I agree I have received a default notice dated 1st March 2009 from the claimant, however I suggest that the said default notice is invalid due to allowing insufficient time to remedy the breach. By not allowing 14 days clear notice after service as required by law, I was not given sufficient time to even obtain an appointment to seek legal advice.

 

A default notice was received, however, this is invalid in that it does not allow sufficient time to remedy the breach as required by law. By not allowing 14 ........

 

 

Just some nitpicking:rolleyes:

[cosalt]

CLAIM NO

 

DEFENCE SUBMITTED BY

 

I Respond to the Particulars Of Claim in the order laid out by the claimant.

 

• Hire Purchase Agreement
  

It is agreed, I entered into an agreement with the claimant, however the vehicle details are incorrect and the vehicle is actually a Iveco 75e15 7.5t HGV as shown on the registration document.

• Agreement Figures
  

I agree that the figures shown are as per the agreement..

 

• Calculations
  

I disagree with the quoted figures, at the time of alleged default the sum of £7637.84 had been paid to the claimant, leaving a balance of £1642.24, I put the claimant to strict proof that their quoted figures are correct.

• Default Notice & 5. Termination
  

A default notice was received, however, this is invalid in that it does not allow sufficient time to remedy the breach as required by law.By not allowing 14 days clear notice after service as required by law, I was not given sufficient time to even obtain an appointment to seek legal advice.

 

The Default notice supplied by the Claimant is dated Sunday 1st March 2009, to allow service in line with the statutory requirements for service of documents, 4 working days were required to allow for 2nd Class postage. Thus the rectify date should be 14 calendar days from Friday 6th March 2009, namely Friday 20th March 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 14th March 2009.

 

Furthermore, the Arrears total claimed is not accurate, at the time of alleged default the account had two outstanding payments totaling £408.06 yet the default notice states the default amount as £411.26.

 

The 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 an 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.

 

I therefore put the Claimant to strict proof that any Default Notice sent to me was valid, allowed the statutory 14 clear days to rectify the breach and showed an arrears total that was accurate.

[cosalt]

Thanks again for the help CB, I have made the amendments in the above post as suggested by you.

 

Hopefully this is the final one !

[cosalt]

Defence and form in tonights post !

[cosalt]

Can anyone advise what happens now with this ? The defence has been sent back to the court. When should I expect to hear something?

 

`

[cosalt]

Hi, I have checked with the court and they have received the defence, a copy has been sent to the claimants. They say I now have to turn up next week at the hearing.

 

Is there still a chance the finance company will contact me to settle this beforehand ? If I hear nothing is that bad news ?

 

Getting a bit worried now

[citizenB]

Hi, I have checked with the court and they have received the defence, a copy has been sent to the claimants. They say I now have to turn up next week at the hearing.

 

Is there still a chance the finance company will contact me to settle this beforehand ? If I hear nothing is that bad news ?

 

Getting a bit worried now

 

There is always the possibility of a last minute flurry of contact, cosalt. They may even respond to your defence prior to then by way of a rebuttal.. you just cant forecast what they will do.

 

Just make absolutely certain you are confident that you have all the information you need .. practice talking in front of a friend or family member. have a read of BRW's post

 

What to pack for a day in court - BRW

[cosalt]

Thanks CB, that info is very useful.

 

One more ( silly ) question ! What should I wear? Should I wear a suit, or trousers & tie ? Or is smart casual acceptable ?

 

Cosalt

[cosalt]

Right, I have had a response from them and it doesn't look good, basically they are refuting my claims, mainly saying that there is no requirement in the CCA1974 to allow for service of the DN. They also say that despite the DN saying I must remedy within 14 days of the date, they say they actually gave me 18 days because they did not terminate until 4 days after.

 

Starting to panic now as the hearing is next week, can i go back to them now and refute their claims ??

[cosalt]

Very interesting, in the latest paperwork they sent they have enclosed another copy of the default notice, however the notice now says '18' days instead of '14' days as on the original I have.

[emandcole]

Very interesting, in the latest paperwork they sent they have enclosed another copy of the default notice, however the notice now says '18' days instead of '14' days as on the original I have.

 

Hi Cosalt, just checking in on this. Not read the thread from the start but this last post is interesting enough. If they've been doctoring default notices and you have the original, which is certainly invalid they're really in trouble. If they enter that document and certify it is a genuine copy when you can show otherwise they'll be playing an extremely dangerous game.

 

I take it the other side is unaware you have the original? Has there been no disclosure of documents yet? Can't work out why they'd attempt such a desperate move if they knew wat you'd got?

[cosalt]

Hi Cosalt, just checking in on this. Not read the thread from the start but this last post is interesting enough. If they've been doctoring default notices and you have the original, which is certainly invalid they're really in trouble. If they enter that document and certify it is a genuine copy when you can show otherwise they'll be playing an extremely dangerous game.

 

I take it the other side is unaware you have the original? Has there been no disclosure of documents yet? Can't work out why they'd attempt such a desperate move if they knew wat you'd got?

 

Hi emandcole, thanks for posting ! There has been no disclosure of documents and although I have reffered to the DN in my defence I have not told them I have it. They have definately certified it as genuine as they refer to it in the witness statement. It is the very same DN ( even the small print ref numbers are the same and the dates ) only difference being 14 is now 18.

 

How should I proceed?

[AA99]

Probably completely illegal but, I would keep that one up my sleeve and disclose the fact in court! Surely they can be had for changing documents to suit themselves:-o

[patrickq1]

Hi emandcole, thanks for posting ! There has been no disclosure of documents and although I have reffered to the DN in my defence I have not told them I have it. They have definately certified it as genuine as they refer to it in the witness statement. It is the very same DN ( even the small print ref numbers are the same and the dates ) only difference being 14 is now 18.

you cannot withold the document if its to be entered into court so a copy and a curt letter letting the judge know that they seem to have entered a document that is a fabrication of the truth...and ask for a strike out at this late stage...also have you had any notification of any commissions paid on this and the commissions being added onto the full bill ? was their any PPI sorry i have not read the whole thread ..

patrickq1