MINT is cca enforcable?

[I've got no money]

thanks IGNM, i think thats what x20 was saying but how do i tell a potentially ignorant of the fact judge that? if i quote that verbatum, to my mind the other side will merely state the Act and that as im relying on all other aspects within the Act for my defence and it being in black n white so to speak, the DJ could easily side against that argument. it doesnt seem watertight or am i just not grasping the point here?

 

Basically I think that you're trying to complicate it - the point is straightforward no DN - then the proceedings are invalid

 

Don't forget Woodchester

[r&b]

IGNM, i just ask myself what id ask them!! i shall however, bow to your greater knowledge and take ur advice, as always. i ll try and post my amended def and skelly on saturday at latest (incl woodchester) for critique, should u get a chance with ur uni schedule (hope that is as polished as ur law by the way !!!! lol)

many thanks for ur time.

[I've got no money]

Well by Saturday this years Uni Schedule should be completed - the last assignment finished until we start back in late September...

[I've got no money]

There is a copy of Woodchester here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/171436-ccj-claim-form-received-5.html#post2184698

 

and have a look at this

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html#post1840188

[questioning]

Hi,

I sent u an email, don't know if u read it though.

I was just telling u in case u didn't realise that Mon is a bank holiday.

[r&b]

ohhh bugger no id forgotten that, strange coincidence eh? crafty sods, ....thanks Q.i doubt i can get it in today in all honesty so ill have to include a letter of apology on tuesday i guess.

[questioning]

can you not fax it R&b?

Edited May 22, 2009 by questioning

[r&b]

i can try n get it there ...ill try n get it dun now...hate hurrying this stuff...

Edited May 22, 2009 by r&b

[questioning]

Really sorry bout that,

Try ringing the court to ask if you can file it on Tuesday as BH on monday,

[r&b]

no worries Q not a prob. thanks for the reminder by the way.

i had to post a letter anyway so phoned the court en route and they said as its not an order of the court, just a letter from the other side, i can put it in on tuesday. i have to send a copy to the other side as well, which i didnt do with the original as i was told the court do that. i ll attach a letter of explanation too as a matter of courtesy. still no CPR hearing so looks like they will just amalgamate the whole thing once they have submitted their reply to my defence.

[r&b]

ok ill have to fit this in the main skeleton (post #69) over the weekend (somewhere between 9 and 12) but this is to go with the amended def on post #96 any comments welcome:

AMENDED SKELETON :

1) It is admitted that the Claimant has produced an alleged Default Notice in relation to the enforcement of this claim under the Consumer Credit Act 1974, dated 7th April 2009.

2) 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 rise to a counter claim for damages: Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

3) The alleged Default Notice does not specify a date by which the account must be rectified but merely states “17 days after the date of this Notice” in which to remedy. Indeed the Default Notice itself states :

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN,” no such date is shown.

The Defendant submits that this is in clear breach of the Act s.88(2) which states:

s.88.

“(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.”

It is clear that the Act is very specific in this regard and does not allow the Court, room for manoevre in this respect.

Indeed in Woodchester Lease Management Services Ltd v Swain and Co in the Court of Appeal it was submitted that:

“this court has no discretion in the matter and invited our attention to

other parts of the statute, particularly s 60 and the ss associated therewith including s 127 where it is clear that a discretion is

given which is noticeably absent in the case of ss 87, 88 and 89.”

This can therefore not be dismissed as a De Minimus issue.

4) It is admitted that the Claimant has produced a Termination Notice dated 28th April 2008. The document clearly states that the account is terminated, further endorsed by the demand for full payment of the outstanding debt in paragraph 2 of said notice.

5) It is averredthat a Default Notice, in order to be valid, 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 Defendant submits that the arrears total in the case of this Default Notice, cannot possibly be accurate to conform with the regulations referred to in point 5), as the account is comprised, in part, of unlawful charges plus additional interest on those charges. (statements attached)

7) Further, with reference to 5), the Defendant submits that the Default Notice produced by the Claimant, even if it were a true copy of the original, which is not admitted, does not conform to the regulations stated in that:

i) The Default Notice was served subsequent to the termination of the account. The Default Notice therefore adopts the fiction that the account endured and that remedy is possible on a terminated account.

ii) The Default Notice does not give a specific date for remedy.

iii) The Default Notice is inaccurate in that it includes unlawful charges in the amount required for remedy.

Any one of these facts render the Default Notice invalid leaving the Claimant unable to benefit from s87 of the Act.

8) The Defendant submits that as the Claimant saw fit to serve a Termination Notice prior to the Default Notice, this leaves the Claimant unable thereafter, to serve any subsequent Default Notices as A Default Notice would necessarily be required to state a date in the future by when remedy must be enacted. No such remedy is possible on a terminated account.

9) The Defendantwould like to respectfully remind the Court, that at all times this is an Agreement regulated by the Consumer Credit Act 1974. The Claimant must therefore, have strictly adhered to the regulations set out in s87/88/89 therein, and the 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), in order to be able to enjoy the benefits of s.87.

This is further highlighted in the conclusion of Kennedy LJ in Woodchester Lease Management Services Ltd v Swain and Co in the Court of Appeal:

“This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.”

[exchange]

Thanks for posting this r&b as I am behind you but following the same pattern with rbs. Could be useful for me and others as things develop.

[r&b]

no worries exchange. not sure ive put everything on here as ive got 2 running together (majority on the other thread) but certainly the main bits anyway. got a thread for urs?

[exchange]

r&B, mine is called 'Help - RBS Mint want a fight!' if you want to have a look or sub.

 

Hope you have a good bank holiday weekend.

[ANDREAMOUR]

subbing

[r&b]

im subbed exchange.

ok if no ones got any additions i ll be getting the above amended defence n skeleton into court and sent to the other side tomorrow.

from the practice direction from IGNM, i take it i can simply replace the old with the amended.

Edited May 25, 2009 by r&b

[r&b]

well contrary to their advice on friday the court is shut today !!!! be another day late then....sent the amendments to the other side. will be waiting on their reply, which i take it i should get a copy of?

[r&b]

finally got a hearing date 23rd July. it says for the APPLICATION (my 31.14 disclosure) ill phone the court monday to check, but i wonder if this 31.14 disclosure appl is being heard with the set aside, its been allocated 1 hour.

[r&b]

ok phoned the court to check wot the hearing is for. hasnt really aided much in that there were no specific directions given by the judge, however the very nice lady in the office said that she believed the judge called an hour so that he can get to the bottom of the whole case and should disclosure be required he will most likely give them a set period in which to do so and subsequently everyone will know where they stand.

one other issue did pop up tho.....i didnt serve my original defence on the other side. i have sent the amended defence but i ll get a copy of the original off tomorrow with an apology anyway...should i ask that if they require further time they ask the court? think ill send a letter in to the court too in explanation.

[r&b]

sending original defence/CC and skeleton argument with letter telling them the situation and suggesting that they have plenty of time to get the reply in b4 the next hearing..

[r&b]

well finally i have a reply to my draft defence:

 

http://i615.photobucket.com/albums/t...todefence1.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/t...todefence2.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/t...todefence3.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/t...todefence4.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/t...todefence5.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/t...todefence6.jpg" border="0" alt="Photobucket">

 

this was my draft defence:

 

 

AMENDED

DEFENCE and COUNTERCLAIM for Set Aside

pursuant to the Direction of District Judge xxxxx

Dated xx April 2009

 

 

1. It is not admitted that the Defendant signed an agreement with Royal Bank of Scotland. The Precise terms and date of any such alleged agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement.

2. The Claimant is put to strict proof that they did indeed have staff working on Christmas Day 2001, in relation to this Agreement dated 25th December 2001 in the Particulars of Claim

3. It is averred that if any agreement existed, that the agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the agreement is enforceable within the terms of the Act in that the alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit

4. It is further averred that the alleged agreement is defective in that it is indeed an application form, a separate sheet of Terms and Conditions and a blank unrelated credit agreement.

5. Further and in the alternative if, which is not admitted, an enforceable agreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

AMENDMENT TO PARTS 6. AND 7

6. The Defendant is not in possession of a Default Notice. It is not admitted that the Defendant was served with a Default Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

7. The Defendant is not in possession of a Termination Notice. It is not admitted that the Defendant was served with a Termination Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

AMENDMENT

6. On the xx May 2009 the claimant has produced a copy Default Notice and Termination Notice, on which they claim to have enforced the alleged debt. It is drawn to the courts attention that the Default Notice in question is dated 7th April 2009. No proof of service was forthcoming

7. It is averred that the two documents referred to in 6. are not true copies of original documents due to their very similar composition and the Claimant is put to strict proof as to the fact that they are indeed true copies of original documents.

8. The Defendant has on numerous occasions requested documentation pursuant to this case, in some cases naming the actual documents required. Indeed the Defendant has had to resort to making an application to the court for disclosure of such documents. The Claimant has been unable or unwilling to produce these highly relevant documents in reply to the aforementioned requests and the Defendant avers that these are not true copies of the original documents otherwise these documents would have been made available to the Defendant upon request.

9. In any event, it is averred that the Claimant is not at liberty to serve any Default Notice as there no valid Credit Agreement under which to serve such notice.

10. Further, to enjoy the benefits allowed under s.87 of the Act, the Claimant must have adhered to the strict demands of the Act, by correctly serving a valid Default Notice.

11. It is averred that the Claimant has not correctly served a valid Default Notice as the Claimant had already terminated the account on xx April 2008 with the Termination Notice of that date

12. With reference to point 11. the Claimant is in breach of s.87(1) of the Act and therefore forfeits any benefits under that section of the Act.

13. Further and in any event, the alleged Default Notice does not specify a date by which the account must be rectified, merely stating a period of days is contrary to the strict ruling in this regard, applied by s.88(2) of the Act.

14. The Claimant has included unlawful charges within the Default Notice, further rendering it invalid

15. It is brought to the courts attention that as the Claimant has seen fit to terminate the account via the letter dated xx April 2008 (the Termination Notice), the Claimant is unable to serve any further Default Notices on a terminated account.

16. It is denied that any documentation was attached to the original claim in breach of Civil Procedure Rules part 16 Practice Direction 7.3(1)

17. Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law

18. It is averred that the Claimant has not fully conformed with my disclosure requests under Civil Procedure Rules 31.16 and 31.14 to which end I refer the court to my application for disclosure and subsequent order

19. In view of the above, it is denied that the Defendant is indebted to the Claimant as alleged or at all

Counterclaim

1. The Defendant repeats his defence set out above

2. The Defendant seeks a declaration from the Court that the aforesaid agreement is unenforceable in that it does not contain the statutory particulars and is therefore unenforceable within the terms of the Consumer Credit Act 1974

 

Statement of Truth

I believe that the facts stated in this amended defence are true

I am the Defendant

r&b

 

will go thru it. if anyone has any comments would be grateful.

Edited July 3, 2009 by r&b

[r&b]

ok so going thru this drivel:

 

1. just a timeline

2.1. well they shud know em better than me and the DJ made comment on my reasons to set aside... anyhow CPR 13.3

2.2. CPR pt 13: SCOPE OF THIS PART:

13.1 The rules in this Part set out the procedure for setting aside or varying judgment entered under Part 12 (default judgment).

(CCR Order 22 r.10 sets out the procedure for varying the rate at which a judgment debt must be paid)

 

 

CPR pt 12. MEANING OF DEFAULT JUDGMENT:

'default judgment' means judgment without trial where a defendant-

(a) has failed to file an acknowledgment of service; or

 

(b) has failed to file a defence.

 

(Part 10 contains provisions about filing an acknowledgment of service and Part 15 contains provisions about filing a defence)

 

I did not file a defence but did admit the claim.

 

 

2.3. why wud i? its their ability to enforce thats in question.

2.4. thanks for the tip.

2.5. exactly wot the DJ said and asked for.

3&4. ok

5. and...

6. we have the front of the appl form, otherwise hearsay on all counts. they sent me as proof copies of Mint t&cs so clearly not the originals anyway."there would have been terms overleaf" wheres that bit in the CCA1974 which allows them to enforce on this? "an executed agrmt was entered into" so what did i sign then? answered by wilson. also as stated in my def how can an appl form be an agmt too?

7. so signed on 20th nov processed 25th dec 01? slow system. funnily enuff ive only had stmts from apr 03 from the SAR when i look?

8. ok

9. so those are the new mint t&cs, not as made out, from 2001 then?

10. ok

11. rite!! application form constituted an agmt? no prescribed terms attached/within the agmt?

12. they mean para 7 but still hard to believe.

13.1. where is it then?

2. ok.. such n agmt "would be regulated by cca1974?"

3. so its unenforceable

14. easily identified....and im missing some stmts so not fully disclosed..any charges unlawful high ct case.

15.1. ok

2. yes but copies of what? not the original clearly.

3. why wud they need to 'update' anth if it was the original? and what abt the differing account numbers at the base of TN?

16. ok so they have disclosed everything they have then...def suggested...not rocket science to understand that is it?

17. not much of a reply is it? i dont know is the answer.

18. their version of the DN does anyway...as stated the Act is clear on a date required.

19. what context can u take charges in?

20. ok

21. how is stating the CPR which they have not abided by in bringing the claim "casual"?

22. show me the original t&cs then...

23. CPR31.14 under this action surely?

24. ok

 

so all in all, vague references to CPR, lots of hearsay and they are def relying on that application form front and the latter day mint t&cs.

 

i take it this requires no response and next i hear from them will be in court on 23rd?

Edited July 15, 2009 by r&b

[r&b]

edited due to cerebral malfunction !!!

Edited July 6, 2009 by r&b

[Spamalot]

R&B... Is this on the right thread?

 

Spam.

[r&b]

R&B... Is this on the right thread?

 

Spam.

 

ahh excellent point spam....too much debt...so little brain....

cheers for letting me know