Finance U Ltd Car Repossession letter received **Round 1 WON... Ding, ding... Round 2 now on**

[postggj]

The Court Would Have Sent An Allocation Questionair

 

What Date Did You Acknowledge Service

[postggj]

Just Checking

 

It Was The 26 June We Acknowledged The Claim

We Then Have 14 Days To Do The Defence

Then The Aq Gets Issued

 

As Long As By Wed At The Latest

[nowayjose]

Yes...It was sent recorded on the 26th June....This Wednesday??

[postggj]

We Have Till This Friday

Just Allowing For Postage

Best Sent Special Delievery

 

You Need To Be Sending A Copy Of The Defence To The Other Side Also

 

Thats Three Copies

 

For You

The Other Side

The Court

[nowayjose]

Ok... do I use the form that was sent with the original claim form (n9b) to put in the defence??? Sorry if thats a stupid question

[postggj]

Ill Do The Defence

Ill Send It To You As An Email Attachment Or I Will Post It Up For You To Copy

Ill Post It Up To Get A Secomd Opinion

 

All Will Be Explained When The Defence Is Ready

[nowayjose]

Thanks very much Postggj... I know youre very busy, look forward to seeing the defence...I have noticed a lot of guests watching this thread, though;)

[postggj]

In the xxxxxxxx

County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. On the 29/01/2008 I received a document purporting to be a default notice, it is averred that the document is not compliant with the Consumer Credit Act 1974 or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. The reasons of which will be set out below under the heading Default Notice

　

　

Default notice

 

3. it is submitted that 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)

 

4. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

5. I refer to the date of the letter as being the 29/01/2008; it is denied that the Default notice was received on the 29/01/2008 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.

6. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

7. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

8. 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.

 

© 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.

9. 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

 

10. 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]"

 

 

11. The statements referred to in points 46 & 47 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

12. 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.

13. I 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.......

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

 

 

 

14. 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 invalid as a consequence

 

15. 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

 

16. The claimants 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 and since the claimant has failed to adhere to statutory procedure it is averred that the claimant does not have a right of action

17. the only default issued to the defendant was on the 29/12/2008 for £653.00, those arrears were cleared by 24/06/2008. arrears again occured and no new default notice was served between january 2008 and jan 2009 when the claiment terminated the agreement.

18. the consumer credit agreement has been terminated unlawfully by the claiment

 

 

Statement of Truth

 

 

I believe the above statement to be true and factual

 

 

Signed …………………

 

 

ok people

 

this is a very rough draft

 

add to it or shoot it down

 

has to be right in the next 24 hours

 

meny thanks

Edited July 8, 2009 by postggj

[postggj]

quick question for the site team

 

a default notice was issued, a non compliant one last year, the arrears wee paid off

 

the car was repo and no new default notice was sent

 

this court action has been started with out a new default notice,

now with court action, the account has been terminated, so what about the agreement side of things, there is now no agreement,

 

see what ime getting at

no default notice so how can only the arrears up to the default notice be paid being the original default notice was not only flawed, but the arrears were cleared

[nowayjose]

Postggj thanks so much for that... tbh most of it went over my head...and

quote''See attached exhibit SC1,2,3 etc''... what does this refer to???

I really need to get my head around this one...I will PM you as well:confused:

[postggj]

no worries

 

ill have it finished by morning

its just a rough draft and thank a few caggers for there work

 

ill be on tommorow about 1 so send it to the court by special del last thing tommorow

 

ill give the nod when finished

[havinastella]

I've had a scan through it, as mentioned in 17, there are no arrears.

 

Do we want to fit this in somewhere for return of the charges, or just leave it? If you want it in, I'll workout and change all the figures for you.

 

It's an offset for the charges levied against you.

 

Did you have unfair charges on the account you terminated to sign this current one?

 

Jogs

 

 

 

 

Summary

 

5. Throughout the course of the Agreement, the Claimant has added numerous default charges to the Account for the Defendants failure to make the minimum payment on the due date. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

 

a). A penalty payable on breach of contract and thus unenforceable: and or

 

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Defendant.

 

7. I submit that I have the right of equitable set-off of these charges against the claim made by the Claimant.

 

The Charges

 

8. CHARGES IF YOU BREAK THIS AGREEMENT (need to say where this comes from)

 

8.1 You must pay us our reasonable costs and legal expenses for taking steps to make you keep to your part of this agreement or trying to find you or the goods or repossessing the goods.

 

8.2 If any amount due from you is not received by its due date we can (without affecting any of our other rights) require you to pay us interest on that amount until it is received both before and after any judgement at a rate equivalent to the APR shown on page one.

 

8.3 If you fail to pay a repayment shown on page one under the heading ‘YOUR REPAYMENTS’ then we may charge you a fee of £25 after you have been in arrears for at least 9 days and a further fee of £25 after you have been in arrears for at least 19 days. If after that you remain in arrears for this repayment or for subsequent repayments, then we may charge you a further fee of £30 per month for each month or part month that you remain in arrears. If you pay by cheque and this is returned unpaid by your bank we may charge you a fee of £15. We may change these fees by giving you two months prior written notice.

 

Penalty

 

9. The Charges were payable on breach of contract by the Defendant.

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Defendants transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

12. At all material times the Defendant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

14. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2)The Charges were a penalty for breach of contract.

 

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Claimant wrongly applied Charges to the Account totaling some £371.82between [18/03/2005] and [21/05/2008]. Particulars appear from Schedule 2.

 

The claimant therefore claims

 

(1) A declaration that the sums totaling £[ 371.82] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[371.82 ] and interest of [£25.88] applied by the Claimant thereon.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[397.70 ], and at the daily rate of [ 8% ] until judgment or Set-off.

 

The Office of Fair Trading (“OFT”) Test Case I think this bit shouod go between 16 and 17

1.This defence does not relate to overdraft charges on a bank current account. It is therefore not affected by the current OFT case recently heard in the High Court on the applicability of the Unfair Terms in Consumer Contracts Regulations ("UTCCR") and should be allowed to proceed to it’s natural conclusion through the court.

 

2.Hire Purchase charges differ from current account charges in that they relate to a clear breach of contract and this is shown in the Claimant’s own terms and conditions.

 

3.Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52.

 

I believe that the facts stated in these particulars, comprising of four pages, are true.

 

 

Signed

 

 

 

[postggj]

thanks for dropping in havinastella

what do you think nowayjose

shall we include it

go the whole hog

[postggj]

havinastella

 

as time is an issue

can you work out the charges while i carry on and ammend the defence

include the changes in your hanywork

 

meny thanks

[nowayjose]

thanks for dropping in havinastella

what do you think nowayjose

shall we include it

go the whole hog

 

 

Why not $h*t or bust:wink:

[postggj]

will let havinastella do the biz

its going to give him some thing to think about

THAT IS THE CRETING WHO STARTED THIS CLAIM

Edited July 7, 2009 by postggj

[crk81]

subscribing....wish you luck nowayjose

[havinastella]

I have done the figures but have also noticed the loan agreement.

 

http://www.consumeractiongroup.co.uk/forum/repossessions/191799-finance-u-ltd-car.html#post2074262

 

The figures on the agreement DO NOT ADD up.

 

It also has interest @ 24.68

but APR @ 28.4

 

I'll post the charges up in a min.

 

Jogs

[havinastella]

Schedule

Account Holder NOWAYJOSE

Bank

Sort Code

Account Number

 

Claim Date 7-Jul-2009

Interest Rate (%APR) 28.40% 0.06851% % per day

TOTAL CLAIM: 228.73

 

TOTAL AMOUNTS 133.00 95.73

 

Charge Reason Charge Amount Charge Date Days Interest

ARREARS LETTER CHARGE 19.00 12-Mar-2007 845 14.89

DEFAULT NOTICE CHARGE 19.00 19-Mar-2007 838 14.73

ARREARS LETTER CHARGE 19.00 10-Apr-2007 817 14.25

ARREARS LETTER CHARGE 19.00 8-May-2007 789 13.62

DEFAULT NOTICE CHARGE 19.00 16-May-2007 781 13.44

ARREARS LETTER CHARGE 19.00 7-Jun-2007 760 12.97

DEFAULT NOTICE CHARGE 19.00 31-Jul-2007 707 11.83

 

 

 

Court interest @ 8% = £44.61

 

228.73

44.61

 

 

£273.34

Edited July 7, 2009 by havinastella

[postggj]

I have done the figures but have also noticed the loan agreement.

 

http://www.consumeractiongroup.co.uk/forum/repossessions/191799-finance-u-ltd-car.html#post2074262

 

The figures on the agreement DO NOT ADD up.

 

It also has interest @ 24.68

but APR @ 28.4

 

I'll post the charges up in a min.

 

Jogs

 

 

this is urgent

need to get this into the defence today

any sugestions people

[postggj]

bump

[postggj]

just about finished the defence

can you tell me if anyware on the agreement it mentions charges ref

missed dd

late payment etc

[postggj]

In the xxxxxxxx

County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxx- Claimant

and

 

- Defendant

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

2. On the 29/01/2008 I received a document purporting to be a default notice, it is averred that the document is not compliant with the Consumer Credit Act 1974 or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. The reasons of which will be set out below under the heading Default Notice

 

Default notice

 

3. it is submitted that 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)

 

4. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

5. I refer to the date of the letter as being the 29/01/2008; it is denied that the Default notice was received on the 29/01/2008 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.

6. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

7. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

8. 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.

 

© 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.

9. 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

 

10. 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]"

 

 

11. The statements referred to in points 46 & 47 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

12. 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.

13. I 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.......

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

 

 

 

14. 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 invalid as a consequence

 

15. 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

 

16. The claimants 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 and since the claimant has failed to adhere to statutory procedure it is averred that the claimant does not have a right of action

 

Summary

 

17. Throughout the course of the Agreement, the Claimant has added numerous default charges to the Account for the Defendants failure to make the minimum payment on the due date. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

 

a). A penalty payable on breach of contract and thus unenforceable: and or

 

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 ("The Regulations") and therefore not binding on the Defendant.

 

18. I submit that I have the right of equitable set-off of these charges against the claim made by the Claimant.

 

The Charges

 

19. CHARGES IF YOU BREAK THIS AGREEMENT (need to say where this comes from)

 

20 repossessing the goods.

 

21 If any amount due from you is not received by its due date we can (without affecting any of our other rights) require you to pay us interest on that amount until it is received both before and after any judgement at a rate equivalent to the APR shown on page one.

 

22 If you fail to pay a repayment shown on page one under the heading ‘YOUR REPAYMENTS’ then we may charge you a fee of £25 after you have been in arrears for at least 9 days and a further fee of £25 after you have been in arrears for at least 19 days. If after that you remain in arrears for this repayment or for subsequent repayments, then we may charge you a further fee of £30 per month for each month or part month that you remain in arrears. If you pay by cheque and this is returned unpaid by your bank we may charge you a fee of £15. We may change these fees by giving you two months prior written notice.

 

Penalty

 

23. The Charges were payable on breach of contract by the Defendant.

 

24. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Defendants transgressions.

 

25. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

26. At all material times the Defendant was a consumer within the Regulations.

27. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

28. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2)The Charges were a penalty for breach of contract.

 

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

29. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

30. The Claimant wrongly applied Charges to the Account totaling some £371.82between [18/03/2005] and [21/05/2008]. Particulars appear from Schedule 2.

 

The claimant therefore claims

 

 

(1) A declaration that the sums totaling £[ 371.82] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[371.82 ] and interest of [£25.88] applied by the Claimant thereon.

 

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[397.70 ], and at the daily rate of [ 8% ] until judgment or Set-off.

THE OFFICE OF FAIR TRADING (OFT TEST CASE)

1. this defence does not relate to overdraft charges on a bank current account. it is therefore not affected by the current oft test case recently heard in the high court on the applicability of the unfair terms in consumer contract regulations (UTCCR) and should be allowed to proceed to its natural conclusion through the court.

 

2.Hire Purchase charges differ from current account charges in that they relate to a clear breach of contract and this is shown in the Claimant’s own terms and conditions.

 

3.Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52.

 

I believe that the facts stated in these particulars are true.

 

 

Signed

 

 

 

again

 

just a rough draft with a few more additions needed

 

comments people

Edited July 8, 2009 by postggj

[nowayjose]

Thanks Postggj

 

As for the list of charges I have a piece of paper with a tariff of charges which I will post up now, and on the terms of the agreement 3.2 We may charge you our reasonable costs incurred for enforcing this agreement including, but not limited to, our reasonable charges for sending arrears letters or reminders, any unpaid, returned or recalled payment, and court costs and reasonable collection expenses, including tracing fees.

 

NWJ x

 

 

 

 

Here are the tariff of charges

[postggj]

In the xxxxxxxx

County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxx- Claimant

and

 

- Defendant

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

2. On the 29/01/2008 I received a document purporting to be a default notice, it is averred that the document is not compliant with the Consumer Credit Act 1974 or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. The reasons of which will be set out below under the heading Default Notice

 

Default notice

 

3. it is submitted that 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)

 

4. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

5. I refer to the date of the letter as being the 29/01/2008; it is denied that the Default notice was received on the 29/01/2008 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.

6. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

7. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

8. 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.

 

© 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.

9. 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

 

10. 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]"

 

 

11. The statements referred to in points 46 & 47 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

12. 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.

13. I 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.......

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

 

 

 

14. 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 invalid as a consequence

 

15. 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

 

16. The claimants 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 and since the claimant has failed to adhere to statutory procedure it is averred that the claimant does not have a right of action

 

Summary

 

17. Throughout the course of the Agreement, the Claimant has added numerous default charges to the Account for the Defendants failure to make the minimum payment on the due date. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

 

a). A penalty payable on breach of contract and thus unenforceable: and or

 

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 ("The Regulations") and therefore not binding on the Defendant.

 

18. I submit that I have the right of equitable set-off of these charges against the claim made by the Claimant.

 

The Charges

 

19. CHARGES IF YOU BREAK THIS AGREEMENT

see exhibit (1)

 

Penalty

 

20. The Charges were payable on breach of contract by the Defendant.

 

21. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Defendants transgressions.

 

22. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

23. At all material times the Defendant was a consumer within the Regulations.

24. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

25. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2)The Charges were a penalty for breach of contract.

 

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

26. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

27. The Claimant wrongly applied Charges to the Account totaling some £228.73 between [12/03/2005] and [31/07/2007].

 

THE CLAIMENT THREFORE CLAIMS

(1) A declaration that the sums totaling £[ 228.73] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[228.73 ] applied by the Claimant thereon.

 

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[228.73 ], and at the daily rate of [ 8% ] until judgment or Set-off.

THE OFFICE OF FAIR TRADING (OFT TEST CASE)

1. this defence does not relate to overdraft charges on a bank current account. it is therefore not affected by the current oft test case recently heard in the high court on the applicability of the unfair terms in consumer contract regulations (UTCCR) and should be allowed to proceed to its natural conclusion through the court.

 

2.Hire Purchase charges differ from current account charges in that they relate to a clear breach of contract and this is shown in the Claimant’s own terms and conditions.

 

3.Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52.

 

I believe that the facts stated in these particulars are true.

 

 

Signed

 

 

 

STILL NEED COMMENTS ON THE INTEREST RATE AND APR

 

I THOUGHT THE APR WAS DEVIDED BY 12 TO GET THE INTEREST RATE

Edited July 8, 2009 by postggj