Court Claim for O/draft from Nthmtn (CCBC)

[AndyOrch]

Hi R&B

 

Ok the Claimants have applied for SJ.Did they state they would in their AQ? SJ applications are not straight forward and are not always guaranteed,sometimes they back fire and the Claimants get their case struck out,so lets see what you have.

Did you ever recieve the Notice served under sections 76(1) and 98 (1) of the CCA with regards to this overdraft (overdraft version of a DN)?

Have you checked the amount in question?

Does it contain penalty charges?

Have you checked the dates to verify the termination date does it allow 14 days?

 

Regards

 

Andy

[AndyOrch]

Hi R&B

 

Ok take onboard the above points.

Summary Judgement before AQs mmmmmmmm!!!!!

Wait and see the DJs response to that before i comment.

Which AQ 150? are you ofay with completing this?

Have you recieved a copy of the Claimants?

When you have completed your WS in response to the Claimants WS post up ill take a look also post up your AQ response before submission.

 

Regards

 

Andy

Edited June 24, 2009 by Andyorch

[AndyOrch]

Hi R&B did the site go down?

 

Ok the above is a start but it will need a lot more polishing to be deemed effective in objecting to the SJ.

When the Claimant submits a statement in application to SJ you have to trash it, bury it, give the DJ who is dealing with the application that not everything is as it appears.

Concentrate on the Termination Notice and the penalty charges,just as the Claimants Witness as skirted it.You need to remind all involved with this claim the reason for your argument and why legally the claim is incorrect.I wouldnot advocate laying out in the fashion of your draft but just go to the crux of the matter, refuting were the Witness is incorrect and why SJ must be denied and that the claim being complex will need trial.

I have just pinched this from one of 42mans post.Digest and pick out parts for your statement.There is some very convincing law to back up your argument.

 

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 Friday 3rd August, 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 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

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, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. 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 XX/XX/XX. 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.

 

Regards

 

Andy

[AndyOrch]

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

 

 

 

N150 Allocation Questionnaire

 

 

 

 

 

Section I - Other Information

 

During the period in which the Account has been operating the Claimant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant or in respect of various purported services provided by the Claimant (“the Charges”). The Claimant also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

Insofar as they purport to be services provided by the Claimant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Claimant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

Directions

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. I have made repeated attempts under CPR18 (5th April 2009, 6th May 2009 and 21st May 2009). Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as, non production of the requested documentation will inhibit the courts ability to deal with the case.

 

It is respectfully requested this case be allocated to the fast track. It is a case however, that is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case, I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

Please find the following attached to this allocation questionnaire;

 

1) Section I - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

 

anything need adding/changing?

 

Thats what i would put otherwise fine

 

Regards

 

Andy

[AndyOrch]

many thanks again andy.

i ll be off for a few hours n have another crack at the WS ltr.

just a question is there any recourse to getting all this landed on the mat the day before its all due for reply? can i mention this fact if, inevitably im outside the 7 days to file and serve?

 

You send your AQ the day its due to Court.

You send the Claimants a copy when you have had theirs.

The WS you send on the last very day and also a copy to the claimants

(respond by a WS not less than 7 working days.)

 

If I have understood you correctly

 

 

Regards

 

Andy

[AndyOrch]

Just seen above ok so you have recieved a Notice of hearing.Not much time to prepare then you need to point this out also the date you got the notice and the lack of time to prepare

 

 

Regards

 

Andy

[AndyOrch]

ok home,fed and kids in bed working on it now..their costs came thru today as well bless em...a grand... gd work fellas

 

Hi R&B

 

Im a little concerned.What came attached to their WS?

You should have recieved a Notice of Hearing dated etc from your Local CC stating the date time and length of hearing.How do you know its on Monday then?Have you rang the Court that the above is real and the Courts are aware of it?

 

What have you recieved re the Costs? This should only come vis a vis the Claimants AQ

 

 

Regards

 

Andy

[AndyOrch]

Ok

 

 

Retain the package the bundle came in 8th June recieved 23rd June might come in usefull.

 

Ok back to the N o H The form is N244A and will have your CC stamp/frank under the Courts address.The above is sent with the Claimants application and WS and docs referred to in the WS.From Court not the Claimant

Have you got the above ?

 

Regards

 

Andy

[AndyOrch]

Yes the Application form is the N244, anyone can send you that, i have hundreds.The form you have not got is the N244A This is the only official form that the court uses to notify you that the hearing as been set and granted.The Court send you the Application/WS/Docs along with the N244A not the Claimant.Hence I smell a Rat

Not wishing to be pedantic R&B and not wishing for us both to panic and do un nessasary work I think you may want to check with the Court first if the application as been recieved by them.I have seen nearly every trick in the book to try to unnerve Defendents in cases and the above dosent smell right.I could be wrong

 

Regards

 

Andy

Edited June 24, 2009 by Andyorch

[AndyOrch]

I would make a start anyway just in case its legit but as I say in the absence of the N244A something is not quite right.Could be the Court forgot to send it to you:D

Just out of interest which doc gives the date of the hearing?

 

Regards

 

Andy

[AndyOrch]

Notice of Summary Judgement form that got an offical form number R&B?

 

Andy

[AndyOrch]

thats legit R&B another version of the N244 A

 

You better get working on the WS

 

regards

 

Andy

[AndyOrch]

AQ is fine R&B (did you know you can download it on PDF fill it on screen and print off looks far more prof (just me im a perfectionist haha)

 

 

 

Andy

[AndyOrch]

Good Morning R&B

 

Ok did the Court confirm they sent you notice?If so did you take the name of the Court Staff?

You will have to apply a covering letter to the WS stating the facts when recieved etc/nothing recieved from the Court/seven day etc

 

Now just backtracking the date Application was made was 8th June 2009

you recieved sols copy 23rd June.

The notice Of Summary Judgment Hearing was dated 12th June 2009

 

This allows you exactly 7 days to prepare (inc W/End)

 

Now request for SJ is usually made at the time of the AQ so we summise that the Claimant as completed its AQ also.

 

R&B the above is not acceptable and you need to complain to the Courts Casel Manager what as happened.Stiched up and kipper spring to mind:(

 

Never the less lets continue because your WS is going to be submitted whether they allow or not.

 

Just a few ponts to bear in mind when you start your Draft WS

 

Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the movant must be entitled to judgment as a matter of law. A genuine issue implies that certain facts are disputed. Usually a party opposing summary judgment must introduce evidence that contradicts the moving party's version of the facts. Moreover, the facts in dispute must be central to the case; irrelevant or minor factual disputes will not defeat a motion for summary judgment. Finally, the law as applied to the undisputed facts of the case must mandate judgment for the moving party. Summary judgment does not mean that a judge decides which side would prevail at trial, nor does a judge determine the credibility of their Witness. Rather, it is used when no factual questions exist for a judge or jury to decide.

The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have the burden of proof at trial. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party. Where the opposing party will bear the burden of proof at trial, the moving party may obtain summary judgment by showing that the opposing party has no evidence or that its evidence is insufficient to meet its burden at trial.

 

 

Just post R&B if you need help I am around most of the day.

 

Regards

 

Andy

Edited June 25, 2009 by Andyorch

[AndyOrch]

Looking good R&B

 

Dont forget the need for Formal Demand/Final Notice letter and Notice served under sections76(1) and 98(1) of the CCA 1974.Contention of penalty charges within that notice rendering it invalid

 

Having re read the Claimants WS they are applying for either your defence to be thrown out or a stay on the penalty element and SJ on the remaining balance.Bare this in mind

 

Regards

 

Andy

Edited June 25, 2009 by Andyorch
addition

[AndyOrch]

25 K is correct amendments CCA1974 CCA2006

 

Andy

[AndyOrch]

Hi R&B

 

Ok there is a set process that they must conform to, to release (legally) the Sec 76(1) 98 (1)

 

Firstly Formal Notice to file a Default and take action to recover

 

This usually allows 28 days to make arrangements ie satisfactory payment /payment plan.This is attached to the Sec 76(1)& 98(1) which itself must give the correct balance re overdraft.Must have theirs and yours full address and postcode.Must be dated and state the date of termination (14 days)

BTW this will state there is a charge for this notice and will be applied to the account before the date shown (another penalty charge:D)

 

Formal demand for repayment first listing account numbers and balance

exclusive of unapplied interest which is due or may become due.

 

This gives you the debter the opportunuty to resolve the issues by either

Paying the full amount/or set up a payment plan/or write with your proposals

you would normally be given 10 days to respond before the Claimant can instigate Litigation/pass to a DCA.

 

I trust the above is of use

 

Regards

 

Andy

[AndyOrch]

brilliant andy appreciate the help...

are these statutory requirements under the 78 n 98 regs...IOW how can i add these as issues? Yes. Just include in your WS the procss that must be followed to be able to terminate a overdraft legally and allow you the provision to comply/rectify any breach.Which I summise they never did or you ever recieved the above in pre Action Protocol.They have to convince and proove to the DJ that they did and you then put them to strict proof

is it smth like under s78 n 98 there is a requirement for a FORMAL NOTIC/FORMAL DEMAND in the correct format see s78/98 ss.(3) etc etc

The s78/79, by all means and purposes acts as a DN and as such is governed by the CCa 1974 and as such adequate notice and process must be followed before issuing/terminating should be followed.If they wish to seek the bennefits of the CCA 1974 they are also bound by it also

 

Keep going R&B you are doing well

 

Regards

 

Andy

[AndyOrch]

**EDITED - at the request of the OP**

 

 

 

Very indepth R&B in the time you have had to prepare.Just make sure your appendix and enclosures are correct.

 

Regards

 

Andy

Edited June 30, 2009 by car2403
**EDITED - at the request of the OP**

[AndyOrch]

Not a problem R&B just hope it works for you.

 

Keep the thread updated

 

Regards

 

Andy

[AndyOrch]

I am furious that the Court staff are giving you the runaround like this! Do they know anything about the CPR??? I'm beginning to think NOT! Given that they have not had the courtesy to do this,Any documents filed at the Court should also be served on the other parties in the case. The Court staff clearly do not understand the concept of "filing and serving" and are acting in a way that is prejudicial to your case. Given that the Claimants have made an application, you are entitled to see it, (and a good job the Claimant sent you their bundle) so that you can decide if you want to submit one also, then the Judge can consider both applications and make an "informed" decision.

 

Lets assume the Judge decides they can have a Summary Hearing. This will be communicated to you via an Order sent in the post. The Order gives either party (usually) 7 days to apply to vary/object to the Order. So you would then file your app notice, explaining in your letter that you were denied the opportunity to also file an app notice at more or less the same time as the Claimants, as they conveniently sent you a copy very late in the day. Furthermore, the situation was compounded by the Court not sending out the Notice of hearing Summary Judgement. How on earth can either the behaviour of the Claimant or Court staff be said to be working in conjunction with the Overriding Objective as the CPR requires? Both the Claimant and Court staff are frustrating the legal process, one deliberately, one probably out of ignorance, but nevertheless this impacts upon your case!

 

Your complaint R&B should be reported to the Civil Section Court Manager, detailing some of the points I have raised in this post. If he/she acts unreasonably, take the details to make a formal complaint, as this is unacceptable. The bottom line is, it's not your fault that the Court did not serve the app notice hearing order on you and the 1st you knew about it was in the Claimants Bundle for SJ. You should not be at a disadvantage because of the Claimants dubious practices! Or the Courts inefficiency

R&B you can down load the form EX343 attach your complaint to it and get it off to you local CC

 

Rant over Ps thanks for your kind comments Tonka and support for R&B

 

Regards

 

Andy;)

Edited June 25, 2009 by Andyorch

[AndyOrch]

Hi R&B I trust you are well

 

Ok would not do any harm to be prepared in the event of the Claimants case being struck out alll together consider the following:-

 

1) Time spent researching the Consumer Credit Act 1974 and the Regulations - XX hours

 

1.1) time spent researching and reading case law- X hours

 

1.2) time spent drafting defence and amended defence and allocation questionnaire -X hours

 

total 25 hours at the litigant in person rate of £9.25 per hour

 

these time scales are a conservative approximation, i feel that i have spent much more time than this however i am trying to remain reasonable

 

Other costs,

 

Printing, stationary and postage £10

 

Letter writing between the myself and XXXXXX and yourselves 1.5 hours £13.80

 

Total=£255.05

 

 

Regards

 

Andy

[AndyOrch]

Hi R&B

 

Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005)

 

The above case is over 4 years old and as you would agree under a different climate than as todays.There have been amendents as you are aware along the way to the CCA 1974,I would advocate not letting this deter you from your case but stick to the facts and merits of your own case.I treat everycase individually.

 

Regards

 

Andy

 

Good luck for tomorrow R&B

[AndyOrch]

Hi R&B

 

So all didnt go to plan and your waiting continues.Coincidental the Barrister car broke down, im sure it was nothing to do with him only recieveing your WS to obect to SJ the same day of the hearing.

Take the time to prepare and compose and revaluate anything that you may have missed.

 

Regards

 

Andy

Edited July 2, 2009 by Andyorch

[AndyOrch]

Hi r&b

Have been following your claim closely as we've just ours discontinued by ****. However, we had the same scenario of supposedly instructing the court for judgement and sending little white books. Your letter was brilliant - we too will be writing a letter of complaint soon (mum has just died so I need to get her funeral over with first:() but please post up any response you get. Good luck

 

Sorry to hear that Debs

 

sincerest regards

 

Andy