OH v Cap 1 & Rob Way *** WIN ***

[Tartan Barty]

If you write, they write......if you ignore, they get bored and move onto someone you doesn';t know how to say f off

[babybear39]

If you write, they write......if you ignore, they get bored and move onto someone you doesn';t know how to say f off

 

FOXTROT OSCAR

[cymruambyth]

Guess what Horwich Farrelly have sent a threatogram and it's in a Rob Way envelope and from the same address

I guess it's a surprised letter http://www.consumerforums.com/resources/templates-library/86-debt-collectors/575-letter-to-solicitors-threatening-legal-action-in-default-of-agreement-request- to them.

Also I had sent the cpr 31.16 request to Rob Way on 29th June (which appears to be in postal never never land).

Is it worth a complaint to the SRA?

[cymruambyth]

HW have replied to the cpr 31.16 that I had sent Rob Way;

'Please note as we advised a copy of the agreement has been forwarded to you and we are no longer required to provide further proof of your liability.'

This is the agreement http://i399.photobucket.com/albums/pp74/cymru_1/Cap1CCA.jpg.

Aren't the cpr different from the CCA requests? I think they are being 'economical with the truth /law'

[cymruambyth]

'An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981 (c.54) or section 52 of the County Courts Act 1984 (c.28).'

 

Is this the correct statement to quote to HF in addition to telling them about the CCA and its requirements?

[IdaInFife]

I wouldnlt waste my time on replying, they are stalling.

 

I would just keep to your timeline for letter 2

 

ida x

[cymruambyth]

Thank you Ida, I'll hold fire until the 20th.

[cymruambyth]

Still waiting for cpr 31.16.

HF decided to send a letter from Northampton instead . Will post POC later as I'm not sure about it...

[cymruambyth]

POC

'THe claimant claims outstanding monies due and payable by the defendant under a credit agreementwhereby the defendant agreed to repay with interest the value of the credit obtained.

And the claimant claims

1. The sum of XXXX

2. Interest pursuant to s69 of the County Court Act 1984 at the rate of 8% from xxxx03 to date hereof xxxx days is the sum of xxx.xx

3. Future interest accruing at the daily rate of .41

4. Costs'

Any comments gratefully received!!!!

[babybear39]

Who's named as the claimant?

[cymruambyth]

Rob Way assignes of Cap 1

[cymruambyth]

Bump for any comments on the POC please.

[cymruambyth]

In addition to my bump.....I have just found the default notice

'You must pay the amount that you are over on your credit limit within 10 days of the date on the top of this letter'

I also have a letter dated 3 weeks later saying that 'Cap 1 has terminated your right to credit under the agreement'.

[babybear39]

Well the DNs wrong then 'cos it doesn't give 14 clear days or a specific date to be remidied by

[cymruambyth]

Nothing is highlighted etc etc. Due to age of account it is only 7 days, however as there is no specific date and the amounts are incorrect due to charges, it fails in most requirements.

[babybear39]

Oops

[cymruambyth]

Yes!!!!!

Rob Way are in default of my CPR 31.16 request. Should I now send a CPR 31.14 to the solicitors? I assume I acknowledge service online and then if I haven't had any reply file an embarrassed defence.

[babybear39]

Umm...Let me get someone who knows...

[cymruambyth]

Bump please

[cymruambyth]

Rob Way are in default of my CPR 31.16 request. Should I now send a CPR 31.14 to the solicitors? I assume I acknowledge service online and then if I haven't had any reply file an embarrassed defence.

Bump please

[babybear39]

Hi cymru, you need to give the site team a shout

[cymruambyth]

Thanks bb, will do.

[42man]

Hi Cmyru....if you have had a claim through then yes definitely send off the CPR31.14 line with the POC's...however with a dodgy default notice you might find these useful.....

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

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 user should submit a defence based on the same argument but then ask for a strike out with the AQ.

 

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.

STRIKE OUT IDEA....

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.

[cymruambyth]

Hi 42man, thank you for your help.

A couple of questions (sorry)

When I send the cpr 31.14, should I inform HF that I'm going for a strike out?

Should I mention application form and no t &cs?

Should I send the strike out as my defence, or in addition to it.

Finally (phew) my DN was issued under the 7 day rule, can I just amend the numbers or do I need to quote different regs.

THank you, as always C

[cymruambyth]

Online AOS completed.

Any suggestions re above post please.