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    • Particular's of claim for reference only 1. the claim is for the sum of £6163.61due by the defendant under an agreement regulated by the consumer credit act 1974 for hsbc uk bank plc. Account (16 digits) 2. The defendant failed to maintain contractual payments required by the agreement and a default notice was served under s 87(1)  of the consumer credit act 1974 which as not been compiled with. 3. The debt was legally assigned to the Claimant on 23/08/23, notice on which as been given to the defendant.  4. The claim includes statutory interest under S.69 of the county courts act 1984 at a rate of 8% per annum from the date of assignment to the date of issue of these proceedings in the sum of £117.53 the Claimant claims the sum of £6281.14. Suggested defence 1. The Defendant contends the particulars of the claim are generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.3 (3) in relation to any particular allegation to which a specific response has not been made. 2. The claimant has not complied with paragraph 3 of the PAPDC (Pre action protocol) failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st of October 2017. It is respectfully requested that the court take this into consideration pursuant 7.1 PAPDC. 3. Paragraph 1 is noted. I have in the past had financial dealings but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification. 4. Paragraph 2 is denied. I have not been served with a default notice pursuant to the consumer credit act 1974. 5. Paragraph 3 is denied. i am unaware of any legal assignment or notice of assignment. A copy of assignment was sent by Overdales solicitors when acknowledgement of receipt of CPR request was received, but this was not the original.   6. Paragraph 4 is denied. Neither the original creditor or the assignee have served notice pursuant to sec86c of the Credit Consumer Act 1974 Notice of Sums in Arrears and therefore prevented from charging interest on debt regulated by the CCA1974. 7. The defendant submitted a request for a copy of the alleged agreement pursuant to s78 CCA 1974. The claimant has acknowledged receipt of request but has failed to comply. The claimant has failed to provide any evidence of balance or Default Notice requested by CPR 31.14 8. It is therefore denied with regards to defendant owing any monies to the claimant. therefore the claimant is put to strict proof to:  a.  Show how the defendant has entered into an agreement with HSBC. b.  Show and evidence the nature of breach and service of a Default notice pursuant to section 87 (1) CCA 1974. c.  Show and quantify how the defendant has reached the amount claimed for. d.  Show how the claimant has the legal right, either under statute or equity  to issue a claim. 8.  As per civil procedure rule 16.5 (4) it is expected claimant prove the allegation that the money is owed. 9.  Until such time the claimant can comply to a section 78 request he is not entitled, while the default continues, to enforce the agreement 10. By reasons of the facts and matters set out above, it is denied that the claimant is entitled to the relief claimed or any relief.     .
    • OK, well rereading the court orders from March, in the cold light of day rather than when knackered late at night, it is quite clear that on 25 June there will only be a preliminary hearing about Laura representing her son.  Nothing more. It's lazy DCBL who haven't read things properly and have stupidly sent their Witness Statement early. Laura & I had already been working on a WS, and here it is.  It needs tweaking now after reading the rubbish that DCBL sent and after all of LFI's comments.  But the "meat" is there. Defendant's WS - version 1.pdf
    • Morning, I purchased a car from Big Motoring World on 10th December 2023 for £14899.00. On the 15th December I had a problem with the auto start stop function of the car in which the car would stop in the middle of the road with a stop start error message. I called the big assist and the car was booked in for February. The BMW was with them for a week and it came back with the auto stop start feature all fine and all error codes cleared on the report from big motoring world. within 5 days I had the same issue. Warning light coming on and the car stopping. I called big assist again and the car was again booked in for an other repair in May. Car was taken back in may, they had the car for a week and returned with the report saying no issue with the auto stop start feature and blamed my driving. Within 5 days of having the car back it broke down again. This time undrivable. I had the rac pick my car up and take to Stephen James BMW for a full diagnostic. The diagnostic came back with the car needing a new fuel system as magnetic swarf was found.  I have sent big motoring world a letter stating all the issues and that under the consumer rights act 2015 I have asked for a replacement vehicle. all reports from Stephen James BMW have been sent over to big motoring world. Big motoring world have come back and said they will respond to my complaint within 14 days for the date of my complaint letter. I am not feeling confident on the response from them, what are my next steps?   Thanks in advance. 
    • That is really good is that a mistake last off "driver doesn't have a licence" I assume that should be keeper? The Court requested me to send the Court and applicant proof of my sons disability from their GP this clearly shows he has Severe Mental Impairement, he is also illiterate.  I naively assumed once the applicant received this that they would drop the claim.  It offends me that Bank has asked the Judge to throw the case out at the preliminary hearing and to make us pay up.
    • Hi, we are looking to get some opinions on weather or not to bother fighting this PCN. This comes from a very big retail park parking where there are restaurants, hotel, amongst other businesses. The parking is free but I suppose there must be a time limit on it that I am not aware of. We were in the area for around 4 hours. Makes us wonder how they deal with people staying in the hotel as the ANPR is on what appears to be a publicly maintained street (where london buses run) which leads to the different parking areas including the hotel.  1 Date of the infringement 26/05/2024 2 Date on the NTK  31/05/2024 3 Date received 07/06/2024 4 Does the NTK mention schedule 4 of The Protections of Freedoms Act 2012? [Y/N?]  YES 5 Is there any photographic evidence of the event? Entry and exit photos however, based on the photographs we are almost sure the photos are taken on public street. This is the location I believe photos are taken from.  https://maps.app.goo.gl/eii8zSmFFhVZDRpbA 6 Have you appealed? [Y/N?] post up your appeal] No Have you had a response? [Y/N?] post it up N/A 7 Who is the parking company? UKPA. UK Parking Administration LTD 8. Where exactly [carpark name and town] The Colonnades, Croydon, CR0 4RQ For either option, does it say which appeals body they operate under. British Parking Association (BPA) Thanks in advance for any assistance.  UKPA PCN The Collonades-redacted.pdf
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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

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Invalid Default Notices


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As I understand it the judge is simply saying that a DN was not required in this case because either party could terminate at any time. He doesn't make any ruling on the debtor's intentions regarding the DN or the time period given in the DN. He regards the DN as irrelevant because in this case there was no requirement to serve one.

 

However Brandon is about a notice served under Sect. 98(1) of the Act. It is not about a notice served under Sect. 87(1) and, since Sect. 87 does not have a clause equivalent to Sect. 98(2), it has no relevance to - and sets no precedent for - notices served under Sect. 87.

 

From the excerpt available the judge in Brandon appears to have been entirely correct. However it is of no concern to most of us because we will have received notices served under Sect. 87(1).

 

so did brandon (i am led to believe)

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I think you're both reading too much into this case. Clause 10(2) of Mr Harrison's agreement allowed termination at any time. Therefore it came under Sect. 98. Therefore no DN was required. If the judge was correct in ruling that the same circumstances applied in Brandon then he was right to ignore the dates in Brandon's DN because it was a Sect. 98 case which didn't require a DN.

 

The only cause for concern would be if standard credit card agreements were ruled to fall under Sect. 98 rather than Sect. 87. However Sect. 2(2) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 makes it clear that they don't.

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Diddy

 

My point exactly in post 4068 ... the creditor's "error" has put the debtor at a disadvantage from day one of the DN .... yet the Judge allowed that disadvantage to remain and influence his judgement on enforceablility ...

 

I tell you what .. I can't wait to see what the appeal judge makes of it all ... !!

 

it wilbe VERY interesting because if (based on the limited information we have) the decision is upheld- that there is no need for a s87 notice even in the debtor is in default because the creditor as separate rights under another section of the agreement- to terminate the account- then that would mean that s87/s88/s89 would have been overidden and would no longer be of any use within the CCA

 

i would be surprised if this judge;s decision would be allowed to remove probably THE most important protection contained in the consumer credit act

 

 

i think i was told that this judges experience was in commercial law and not in consumer PROTECTION laws - hence his misdirection of himself (IMO)

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I think you're both reading too much into this case. Clause 10(2) of Mr Harrison's agreement allowed termination at any time. Therefore it came under Sect. 98. Therefore no DN was required. If the judge was correct in ruling that the same circumstances applied in Brandon then he was right to ignore the dates in Brandon's DN because it was a Sect. 98 case which didn't require a DN.

 

The only cause for concern would be if standard credit card agreements were ruled to fall under Sect. 98 rather than Sect. 87. However Sect. 2(2) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 makes it clear that they don't.

 

as far as i understand- from the limited information i have is that the creditor served a s87 DN which was invlalid and only "changed their reason" for termination to s98 when the debtor accepted their unlawful termination as a result of the defective DN

 

i understand that the judge- during the course of the judgement- made a ruling that in any event - not allowing 14 days to remedy- did not prevent the creditor from enforcing the agreement and it is this part of his (alleged) jdugement that has put the cat amongst the pidgeons

 

it was a high court judge in the high court and therefore binding on lower courts!

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On the other hand Woodchester (in the Court of Appeal) relies on Sect. 87. The Brandon ruling would in theory invalidate the Woodchester decision (except, of course, that being from a lower court it can't).

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Mind you Woodchester was a credit agreement for the lease of a photocopier, wasn't it, rather than a credit card agreement? (You can see why there are so many opportunities for barristers to get rich.)

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Hi Folks:

 

Geoffey Alby kindly alerted me to this thread regarding "AMEX v BRANDON" in May.

 

I do hope that this script of the case is of help to you all, (and myself), all of us being intrigued as to the full outcome.

 

I believe this scan file will hopefully help.

 

Thanks Geoffrey for bringing this to my attention

 

Enjoy.

SCAN FORUM AMEX V BRANDON CASE.pdf

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Many thanks for that. From a quick glance it is concerning a credit card agreement. It must be rather worrying for the defendant that the judge begins by saying "I had not realised that American Express provided a card which you could pay by monthly instalments rather than paying the whole lot off each month". Presumably on his salary it had never mattered.

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Thanks WMR .. you're a hero ... !!!

 

I've had a quick scan, tell me if I've mis-read this ... but the reason why the Judge said the time allowed for remedy of the default, was because in the actual terms and conditions for the card it said that the agreement could be terminated at any time by the OC and Debtor for the following :-

 

"39. Paragraph 10 of the terms and conditions is as follows:

 

 

"You can end this agreement at any time by returning to us all cards we

have sent you,coupled with a letter asking us to end the agreement."

 

Then 10(2):

 

"We can end this agreement at any time by giving immediate notice.

 

Alternatively, we can stop you from using the card. If we end the agreement you must pay all money you owe on the account."

 

So paragraph or clause 10(2) of the agreement clearly gives American Express the

Right to terminate the agreement and on termination all sums due and owing by the Debtor are to be paid."

 

So this was based on a clause in the t&cs ... which I agree shouldn't over rule procedures for the processing of a DN as defined by statue - but at least we can see where the Judge went off the rails somewhat ...

 

So, if the OC/DCA uses the case as a defence to your unlawful repuditation, as long as the T&Cs don't mirror those of Amex as above, you at least have a come back, together with the arguements aleady posted here regarding effective DNs...

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I love this bit:

 

"American Express is a very large and reputable operation, almost all of whose business must be regulated by the Act. It would be absurd to suppose that it was not aware of the need to comply with a well known requirement which has been in force for 24 years."

 

Anyway, I take back much of what I said previously. This case is also concerned with the need to provide an original agreement in court (not necessary seems to have been the district judge's view) and the inclusion of charges and penalties in the amount demanded (perfectly OK, it seems). It'd be useful to know exactly what decision Brandon was appealing against, though.

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It'd be useful to know exactly what decision Brandon was appealing against, though.

 

(As far as I can see it was against the deputy district judge reserving judgement on Amex's application for summary judgement but I'll let others dissect that.)

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misdirected himself in this paragraph and was clearly applying a test concerned with equality in commercial contracts and not the CCA

 

34. Now, somewhat theoretical though it is, had American Express taken enforcement

actionwithin14daysof 19June, itmaywellbe that thevalidityof thatenforcement

actionwouldhave been opento challenger.expressnofinalviewonthemattcrbut I

do understandthe argumcntbecause,to goback cosection87,it mustspecifythe

nature of thebreachandif the breachis capable of remedy what action is required to

remedyit. Thewholeideais thata debtorshouldhave 14dayswithin which to

redeemthe position,in this casepay £275.80. SoTunderstandtheargument.As I

say, I do not dismiss it a.sbeing unreal. But, the fact of thematteris noenforcement

actionwastakenwithin 14daysof 19June. Sowe havethe service of the

enforcement notice hut nothing immediately happens. In those circumstances, even if

140

,.~,._.

P. 1 a

- Mr Brandon' >point is a good on~) it seems to me to be not relevant in that he has not

. . suffered any prejudice at all by virtue of that technical bn:ach because, n~vcr mind

. within 14 days he did not, for example, within 21 days, which on my finding would

. clearly have been an appropriate period of rime properly to comply with seCtion 87.

. He did not sen.dAmerican Express the cheque for £215. Nothing happened. So he

. remained in breach of his obligation to pay a monthly instalment.

 

firstly, i thought all breaches of terms and conditons were "techinical" - secondly a higher court has already ruled that the normal test of prejudice suffered does not apply in the case of the CCA and that parliament had made that clear

 

 

 

While section 127(3) might be considered drastic, even harsh, in its adverse consequences for a lender, the House of Lords has been satisfied that it was a measure which Parliament was entitled to take and that it was not incompatible with the right to peaceful enjoyment of possessions under article 1 of the First Protocol to the European Convention on Human Rights: Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 paras 68-78; 106-109; 138; 167-172. In Wilson v First County Trust Ltd (No 2) Lord Nicholls of Birkenhead provided this commentary on section 127(3) at pages 844-846:

"71. I turn to the statutory setting of section 127(3). The Consumer Credit Act 1974 contains many requirements about the form and contents of regulated agreements. Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4). In these two subsections Parliament has chosen, deliberately, to exclude consideration of what is just and equitable in the particular case. The latter approach, enabling the court to consider the circumstances of the particular case, was adopted as the general rule in section 127(1). Section 127(3) and (4) are, expressly, exceptions to the general rule. In prescribing these two exceptions Parliament must be taken to have considered that the sanction generally attaching to non-compliance with the statutory requirements was not sufficient to achieve compliance with the duty to include all the prescribed terms in the agreement (section 61(1)(a)) or the duties to provide copies and notice of cancellation rights (sections 62 to 64). Something more drastic was needed in order to focus attention on the need for lenders to comply strictly with these particular obligations."

Edited by diddydicky
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Hi Diddy, good to see you too.

 

On reading the pdf file, did anyone else notice this?

Maybe this was the case referred to?

 

30.

"I have already indicated the dates of the default notice, but in deference to the argument advanced by Mr Rankin the section 87 default notice is dated 19 june 2007:"

 

I hope that is not THE Mr Rankin.

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Guest Jason King

In a similar scenario of a Default Notice not giving the required time to remedy the breach, say only 10 days was given to remedy due to posting, serving etc, then I'd argue that 10 days was too short a timeframe to remedy but 12 days would have been ample (and within the statutory 14 days), and I would have paid.

 

I would argue I was at a disadvantage because the Act allows me a time frame of 14 days but the credit card provider stated a time frame of 10 days, which is unlawful.

 

It would not be for the judge to determine whether or not I would have paid on the 12th day in any case, it is for him to decide whether I had the right to.

 

My Sainsbury's loan T&C's state...'we will follow the correct legal requirements when we do this (end an agreement) including the requirements made under the CCA to serve notices (Default) before certain action is taken.

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i'm not sure i follow the logic of your argument

 

parliament decreed (not all that long ago) that the creditor could not take "the next step" (claim entitlement to the benefits of s87) UNLESS it first served a valid DN To be valid the DN must give the debtor AT LEAST 14 days from the date of SERVICE (not the date of posting)

 

No valid DN= No next step

 

nothing in the act whatsoever as to this being different depending on what the debtor does or does not do

 

the DN (horse) comes before the entitlement to the benefits of s87 (the cart)- and the debtors actions in response to the DN are irrelevant

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In a similar scenario of a Default Notice not giving the required time to remedy the breach, say only 10 days was given to remedy due to posting, serving etc, then I'd argue that 10 days was too short a timeframe to remedy but 12 days would have been ample (and within the statutory 14 days), and I would have paid.

 

Parliament settled on a period of 14 days from service. It's not for a court to decide they were wrong.

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Hmm the Judge in Brandon decided otherwise...

 

Yes and no. He does at least concede that enforcement within the 14 day period is "open to challenge", which is some comfort to those of us with MBNA accounts sold during the remedy period (me included).

 

I don't suppse the transcript of the AMEX v Harrison case is available; it would be interesting to know why that was determined on Sect. 98.

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