Claim Form Recieved - advice needed if possible

[Cyberdad]

I will try again with attachments

POC.pdf

Agreement Page 1.pdf

Agreement Page 2.pdf

Default Page 1.pdf

Default Page 2.pdf

[Cyberdad]

And the remaining attachments

Statement Page 1.pdf

Statement Page 2.pdf

Termination Notice.pdf

Terms & Conditions.pdf

[I've got no money]

I think that they have a problem - the 3rd of January 2009 is a Saturday - they have only allowed 14 days from the 3rd up to the 17th

 

That's wrong - service would be deemed from the 6th - two business days after posting - the DN should take effect from the the day after service - that's the 7th - you should have 14 days after that which would take you up to the 20th January - the DN is defective

[I've got no money]

In terms of the AQ - I'd allocate to the fast track - have a look at the N150 and tell us if you have got any queries.

 

As far as the amended defence is concerned what I would do is amend it and send a copy to the other side and ask for their agreement - if they decline you then need to apply for an Order on an N244

[Cyberdad]

Hi IGNM,

 

Thanks for that...sorry to be dense, but have you any suggestions as to how to word the ammended defence, and what is an N244 (am am very new to all this and a bit daunted by it all)

[I've got no money]

I'll sort out an amended defence in the next couple of days

 

An N244 is an application notice - its' the form you use when you ask the court to do anything. There is, unfortunately a fee of £75 - you may however be able, on grounds of income to have the fee reduced or waived in its' entirety

[Cyberdad]

Thanks for all your help, it is very much appreciated

[I've got no money]

Sorry for taking so long to get back to you I've had some computer problems think that the agreement is CCA compliant but I'm not an expert however I think that the DN is defective before I draft an amended defence has anybody got any comments on the CCA

[Cyberdad]

Hi IGNM and thanks for all your help.

 

I have looked through the AQ, and the only areas I am not sure about are the reasons for selecting fast track, and what if anything I should do about section F, proposed directions.

[42man]

Some useful aspects on the default here CD -

 

Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

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.

[I've got no money]

Fast track gets you enough disclosure whilst at the same time limits costs...its' also appropriate for the Fast track if the the hearing is likely to last less than a vday

[42man]

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

[Cyberdad]

Thanks both

 

Is the section in red applicable in this instance. From the statement, the only charge appears to be a £25 default charge which would appear to have been added before the account was in dispute?

 

I have to say that I didn't ever receive the default notice. I received the termination notice shortly after it was dated, and in my ignorance assumed that was it. The POC refers to a default notice dated the 3rd February (which, I assume, would have created problems for a termination notice dated the 6th Feb), so am I being unnecesarily sceptical about the default notice (when it turned up the day before the deadline for submitting a defence) being dated the 3rd January

[42man]

If you received a default notice for the 3rd February and the termination notice for the 6 then they are stuffed !!!! this is an unlawful recission of contract as they didn't give you 14 clear days to remedy !!!!! (hope the info above I threw in is of some use !!!!)

[Cyberdad]

Hi 42 man,

 

The info is great, thanks . The default notice was never received, and in the POC, it was referred to as having been dated the 3rd February...I did receive a termination notice dated the 6th February. My original CCA request generated a copy of the agreement, some terms & conditions and a copy of the termination notice, but no default notice. My CPR request generated nothing initially, but following a reminder, the same documents including a default notice turned up one day before the deadline for my defence (I had already filed an embarrased defence, so now need to file an amended defence). The default notice when it turned up was dated the 3rd January, and not the 3rd of February as stated in the POC. I am assuming that the claimants will state the reference to the 3rd Feb in the POC's is a clerical error, but it all seems very suspect to me, especially as this is the first I have honestly seen of any DN. It would appear that the DN supplied is flawed anyway due to the number of days (I wouldn't have had a clue about that if IGNM hadn't pointed it out)

[I've got no money]

So you need to do an amended defence

 

Do you want to have a go at drafting one or do you want me to and we'll comment on it

 

42man the DN is actually dated January - they've put the wrong date on the PoC

[Cyberdad]

Hi IGNM,

 

If you have something already in your arsenal then that would be great or alternatively I could put something together this evening and you could then tear it apart for me . I have put this evening aside to do the AQ as well, as they have to be in by the 5th...........I take it that the amended defence is in addition to the draft directions to strike out on the basis of the defective DN. Thanks

[I've got no money]

Hi IGNM,

 

If you have something already in your arsenal then that would be great or alternatively I could put something together this evening and you could then tear it apart for me . I have put this evening aside to do the AQ as well, as they have to be in by the 5th...........I take it that the amended defence is in addition to the draft directions to strike out on the basis of the defective DN. Thanks

 

I haven't got anything particularly drafted already - I tend to use my own as a starting point

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147014

 

I'm not gonna have a lot of time to do it until later tonight - I'll knock something up later

 

You'd need to put a draft direction in the AQ giving you permission to amend - thinking about it you won't get a direction (in the AQ) to strike out the claim - you need to make a separate application for that.

 

Have you posted all of the documents?

[Cyberdad]

Hi IGNM - thanks for all your help.

 

I have posted up all the documents earlier. In the AQ there is a section F headed "proposed directions". 42man has suggested a draft direction above, which appears to be a request to strike out based on the defective DN.

 

Should I use this direction and submit an amended defence? In my holding defence, I did reserve the right to submit an amended defence, and was simply going to send a copy to the court and a copy to the claimant (and wait for them to tell me I had done it wrong )

[Cyberdad]

Hi IGNM,

 

I have just had a read of your defence (very comprehensive ). The only thing which struck me was the fact that you mention a statutory 7 days in respect of the default notice and not 14

[I've got no money]

Hi IGNM,

 

I have just had a read of your defence (very comprehensive ). The only thing which struck me was the fact that you mention a statutory 7 days in respect of the default notice and not 14

 

It used to be 7 days - it was increased to 14 days - yours comes under the new rules and is 14

[Cyberdad]

*phew*

[I've got no money]

Hi IGNM - thanks for all your help.

 

I have posted up all the documents earlier. In the AQ there is a section F headed "proposed directions". 42man has suggested a draft direction above, which appears to be a request to strike out based on the defective DN.

 

Should I use this direction and submit an amended defence? In my holding defence, I did reserve the right to submit an amended defence, and was simply going to send a copy to the court and a copy to the claimant (and wait for them to tell me I had done it wrong )

 

You need to have either the consent of the other side or a specific direction giving you permission to amend - so you need to apply for it in the AQ, and attach a copy of the amended defence to the AQ and send a copy to the other side - putting the strike out stuff in as 42man suggests won't do any harm - because of the nature of a strike out I'd be surprised if the court just struck out the claim - I s'pose that you might get an order for a strike out hearing - yes put it in - if they don't action it you can always apply for a strike out later

[Cyberdad]

Thanks

[Cyberdad]

Hi guys,

 

Sorry for the late hour, but I am in desperate need of some advice. Tonight I have been completing the AQ and putting together directions (with the invaluable advice of IGNM & 42man) and an amended defence to take to the court tomorrow or first thing on Friday.

 

I have never received the DN, and when it eventually turned up (convieniently dated a month earlier than stated in the POC) it turns out to be defective. Perhaps I am a cynic, but I decided to check the termination notice (which I did receive) against the copy of the same sent eventually as part of my CPR request. It is similar, but substantially different; some amounts are different, the dates to pay the balance are different, and there is a complete paragraph missing as regards a charge. To me, it seems as the copy supplied in response to the CPR request has been created for the purpose....is this allowed, or should I be bringing this to the attention of the court, and if so , how? Thanks