SB100 v HFC - is this default compliant? Court/Restons ***WON***

[the_shadow]

Couple of things...

Default Notice

I see mentioned in an earlier post about 14 working days for the Default notice, please not its 14 calendar days, not working days. That said if its not been sent by royal mail first class its deemed to be 2nd class and 4 working days for service.

 

Sent Thursday 15th means deemed served on Tues 21st. 14 days starts from the day after service according to regs so remedy date should have been Weds 6th May to give 14 clear days.

 

POC

Thats a hefty collection charge and one to challange in the defence, strict proof of costs.

 

S.

[the_shadow]

Does my CPR request look ok? I'd like to get it in the post today if poss. Thanks again everyone.

 

Looks fine.

 

S.

[the_shadow]

How on earth can they hope to get away with this- charges and all- when they must know its not allowed???

 

Because if you dont defend then they will just click the button for judgement by default and thats it, As I understand it they then just need to advise the court how they want paying and judgement will be delivered to your door.

 

For every one person who does find this site, just imagine the number that dont and will either panic and admit the claim or just dont bother to respond.

 

S.

[the_shadow]

Hi, and thanks for all the help so far. Head is buzzing with all the information I'm trying to absorb.

 

Defence needs to be in by the 24th, but I'm panicing as I'm away from Wednesday this week 'til Monday next week, which literally gives me Monday afternoon and Tuesday til about 4pm to prepare my defence if I leave it until next week.

 

Can anyone help me before I go away? If something happened while I'm away and I couldn't get my defence done in time It'd be a nightmare.

 

Haven't had anything from the CPR yet, their seven days is up any time now.

 

Thanks.

 

the problem is you cant put a holding defence in until you know the other side havent complied which will be a couple of days before the deadline. (Did you send by recorded delivery, did you check its been received, image of signature avail?)

 

The flip side to that is you cant really put any other defence in as you dont have the documents the other side are relying on.

 

So Whilst its a bit worrying leaving it till next week, I dont think you have a choice.

 

Just my opinion and you have a lot of good advisers on this thread so they may give better advice.

 

S.

[the_shadow]

Ok heres a very rough embarrassed defence (think it came from Pt2537 originally?), others can add to it.

 

S.

 

1. I, ********** of ************** make this statement as my defence to the claim brought by **************

 

2. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

3. No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information via CPR 31.14 dated xx/xx/xxxx sent by recorded delivery none has been forthcoming and as a result I cannot plead in defence to the claim

 

4. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

Statement of truth bit here

 

 

[the_shadow]

Do I include anything about the collection charge and interest sought at this point? I take it I leave comments about the defective default until a full defence?

 

Thanks

 

You could but as your pleading that you dont have information sufficient to actually make a defence due to their non-compliance I would wait to include it in the actual defence.

 

Also if the claimant applies for a summary judgment due to your weak defence you can put it in the witness statement response to strengthen why your defence needs to be heard and not be put aside.

 

When it gets to AQ stage you'll need to ask for disclosure or the judge may order it on him/herself.

 

Just my opinion.

 

S.

[the_shadow]

I think the advice and input the shadow has given is pretty sound (very sound, actually )

 

Cheers, only what I've picked up from the site team on this site

 

 

Cool, thanks for your help everyone. Assume I just hand write it on the defense page? Have tried to login to do it online but I'm not having much luck

 

Yep you can write it in the defense box just dont forget to sign the statement of truth bit

 

S.

[the_shadow]

SB100,

 

Have you received everything you asked for in the CPR 31.14 letter?

 

S.

[the_shadow]

Good , as far as I can see then a trio of options...

 

a) Sit tight as you've posted a defence, court might get involved early and send out directions for claimant to comply or you'll both be sent AQ's to fill out. Would suspect claimant will note they will ask for strikeout of your defence on the AQ.

 

b) Go for strikeout yourself as the default does not comply with CCA1974 regs and therefore they have no cause of action having not terminated the agreement properly.

 

c) Amend the defence, send to other side for agreement on changing defence, if they dont give it apply to court, otherwise just send it in as an "amended defence".

 

42Man has listed the details for the strikeout which will need to be an application (form N244) to court. The link r&b posted holds a defence.

 

S.

Edited June 30, 2009 by the_shadow
cant tell the difference between couple and trio

[the_shadow]

hi Shadow,

would non submission of amendment to defence not leave SB100 open to a SJ, due to the holding defence? i only say this as its just happened to me !!!

 

Yep, sorry thats what I meant by "strikeout" mentioned in a)

 

There is a risk in a) and b) I've posted as far as I can see:-

 

a) SJ application, doing it prior to AQ means its a costs risk as not allocated to a track limiting costs at present

b) Claimants strikeout failing as judge doesnt agree with reasoning or arguments put forward, proceeds to court although defendant should request entitlement to put in an amended defence

 

I think I've listed the right procedure in c) for amendeding a defence but it needs to be confirmed.

 

S.

[the_shadow]

SB100,

 

Still would like confirmation from site team or an experienced cagger on the correct way to send in an amended defence but anyway find below a defence, formatting will probably get messed in the cut & paste so i'll post up a word version if it does.

 

Needs to be edited carefully and I've only put some of the personal info in, you'll need to fill in any XXX's left yourself... should do as a start anyway.

 

S.

 

IN THE XXXXXXXX COUNTY COURT

CLAIM NO.XXXXXXXX

 

Between

XXXXXXXXXXXX

Claimant

and

XXXXXXXXXX

Defendant

 

 

-----------------------------------------------------------------------------------------------------------

 

AMENDED DEFENCE

 

-----------------------------------------------------------------------------------------------------------

Background

 

1. The Claimant issued proceedings on 22/5/2009, these were not particularised as required under CPR and as such I issued a defence claiming non-sight of these documents with a request that I be allowed to file a fully particularised defence at a later date when the documents had been supplied.

 

2. Upon receipt of said claim a CPR 31.14 request was made to the claimant’s solicitors for the following documentation to be provided to enable an amended defence to be entered, alongside the documents listed below I asked for a statement of agreement to enter in an amended defence at a later date. The documents requested were:-

i)A copy of the Defendants Credit card agreement.

ii)The Default notice issued by the claimant served on the defendant

iii)The Termination notice issued by the claimant served on the defendant

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

3. Notwithstanding the matters pleaded elsewhere, 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.

 

4. 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."

 

5. 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

6. Further to point 5 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.

 

7. The Default notice supplied by the Claimant is dated Wednesday 15th April and sent via TNTmail an equivalent to 2nd class post, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 4 working days were required to allow for equivalent 2nd Class postage. Thus the Rectify date should be 14 calendar days from Tuesday 21st April, namely Tuesday 5th May, not as stated in the Default notice namely the 2nd May.

 

8. 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).

 

9. 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.

 

10. 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).

 

11. 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.

12. 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…

 

13. The wording must make 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 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.

 

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 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.

 

16. 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.

 

17. 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.

 

18. 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.

 

19. 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

 

 

 

S69 Interest on Regulated Agreement court claims

 

20. It is denied that the claimant can claim s69 County Court Interest on a consumer credit regulated agreement claim. Under section 2 of the County Courts (Interest on Judgements debts 1991) it clearly states.

 

The General Rule

 

(3) Interest shall not be payable under this Order where the relevant judgment—

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

 

21. According to the particulars of claim issued this claim is for a CCA1974 regulated agreement and therefore it is denied that the claimant may claim s69 interest.

 

Collection Charges on defaulted accounts

 

22. The claimant is claiming £1175.12 as a collection charge for this alleged balance. The OFT regulates collection agencies and creditors when accounts are in default and accordingly the following guidelines apply to collection fees on defaulted accounts:-

 

Charging for debt collection

2.9 Charges should not be levied unfairly.

2.10 Examples of unfair practices are as follows:

 

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

 

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there

is no contractual provision

 

c. not giving an indication in credit agreements of the amount of any

charges payable on default

 

d. applying unreasonable charges, for example, charges not based on actual

and necessary costs

 

e. applying charges which are disproportionate to the main debt.

 

23. The claimant is put to strict proof that the collection charge meets the requirements listed above and is an actual and necessary cost for collection.

 

 

The enforceability of the Agreement

 

24. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts. These conditions are prescribed under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to being the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Inter alia, the agreement must:

properly identify the debtor by name and full postal address (Schedule 1);

 

Inform the debtor of the Protection and Remedies Available under the Consumer Credit Act 1974 to Debtors under Regulated Consumer Credit Agreements. In the present case, this means there should be a section headed “Your right to cancel” containing the required information (Schedule 2);

be signed by the debtor in a signature box of the prescribed form (schedule 5); and

contain certain prescribed terms relating to important financial information (Schedule 6).

 

25. Commenting on the provisions of Schedule 6 in his judgment in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, TUCKEY LJ said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1." (my emphasis)

 

26. The Defendant admits that the agreement supplied complies with the requirements of the regulations in respect of identifying him as the debtor but does not contain any of the prescribed financial terms. This is sufficient to render the agreement unenforceable.

 

27. In this last respect, the defendant refers to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order….”. (my emphases)

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

 

And furthermore:

 

“36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor”.

 

28. Finally, it should be noted that, in the same judgement, LORD NICHOLLS OF BIRKENHEAD, said:

 

“49. .............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.(my emphasis)

 

“50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.” (my emphases)

 

29. The copy of the agreement provided by the Claimant is an application form signed by the Defendant and dated XXXXXXX.

 

30. Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, gives the prescribed (financial) terms relevant to a Credit Card agreement (agreement for running-account credit) as:

 

Credit Limit

3 Agreements for running-account credit

A term stating the credit limit or the manner in

which it will be determined or that there is no

credit limit

 

 

Rate of Interest

4.Agreements for

(a) running-account credit

A term stating the rate of any interest on the credit to be provided under the agreement

 

 

Repayments

5. Consumer Credit Agreements

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

31. It should be noted that none of these terms are present in the Application form provided by the Claimant.

 

32. As has already been noted, the application form was signed and approved in xx/xx/xxxx. The T&Cs supplied separately by the claimant are quite clearly separate to the main application form Thus, the documents provided have both my signature and the prescribed terms but not in the same document. The requirement that “all the terms should be in a single document”, and “within the four corners of the agreement” as demanded by TUCKEY LJ in Wilson and another v Hurstanger Ltd is not met.

 

33. From this and from the above judgement of LORD NICHOLLS OF BIRKENHEAD, it is clear that without a credit agreement, signed by the defendant and containing the information prescribed in the regulations, the Claimant’s claim cannot succeed.

 

Statement of Truth

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

 

 

Dated this xx day of xxxxxx, 2009

S. Edited July 1, 2009 by the_shadow

[the_shadow]

Should I use the termination date reported by equifax or the date referenced on the DN?

 

Personally I would use the date quoted on the default notice IF it states that on xx we will terminate the account.

 

How close are the dates together, you could put terminated on or around xx/xx/xxxx although its better in my opinion to put one.

 

S.

[the_shadow]

Bump- want to send today so if anyone can advise I'll be grateful.

 

Hi SB100, hopefully others more knowledgeable will give advice but as I see it.

 

a) your defence has been entered on time. You could await either an AQ where you can ask for directions to obtain any bits of info you havent had or for the judge to send out direction so there own volition. Although this does leave you open to a SJ request as the defence is a holding defence (Just to add the directions from court are likely to state you must file an amended defence by xx date)

 

b) You could send the defence in with a cover letter to court asking that the amendments be allowed as a LiP and unknowledgable in court procedures, at discretion of court officer and judge if allowed

 

c) Fill in an N244 application stating please accept my amended defence out of time due to the claimant only recently providing information previously requested and required to file a proper defence. Will cost for the application £75 I think.

 

S.

Edited July 6, 2009 by the_shadow

[the_shadow]

Just spoken to the Court- no AQ filed by the other side or fee paid. Apparently its been to the DJ and he's said no further directions until the hearing of my SO/SJ application, which is early October

 

No idea what this means though... or what, if anything, I need to do in the meantime.

 

As I understand it Normal court procedure stops as soon as an SJ application is put in by either side... hence no need for them to file an AQ, they have to defend against your SJ now at the hearing.

 

I feel you need to prepare for that hearing and ensure you can argue the points you have raised for the strike out.

 

S.

[the_shadow]

I recall they need to file their response to my application seven days before the SO/SJ hearing- is this correct?

 

Thanks

 

It'll be whatever the judge has given on the notice of hearing you received, normally its 7 days prior yes, although I've got a hearing coming up and thats been given 2 days to file and serve to court and other party... not an SJ application tho.

 

S.

[the_shadow]

I'll have a read later as I'm just on my way out but initial look shows that the default notice they've attached to the witness statement fails to comply in that its missing a paragraph that the regulations say shall be included.... and yet its in the default notice originally sent to you.. bizarre.

 

Also yes, if they are saying this is what would have been on the back then it sounds like they probably scanned the front page and destroyed them. You need to put them to strict proof that this is the back of an agreement, strange they have not shown a blank example agreement to show how it would fit on the back;)

 

S.

[the_shadow]

Just reading the witness statement...

 

Point 6... "I can advise the court from my own knowledge that the terms and conditions - which appear blah blah blah ..would appear at page 2"

 

Isnt this a case of a solicitor guaranteeing that the t&c are on the back of an agreement, how can he do this unless he has seen or has in his possession an actual document. Surely this is misconduct at worst or an untruth? Or am I thinking the law is allowed to be bent for one sides gains?

 

...and 7 is a lie also, I've already posted up details of why the "re-constructed" default notice is not compliant with the credit/default regulations

 

S.

[the_shadow]

Sorry, havent got time to put it all together but some key legal stuff...

 

working backwards as thats the way my brain is working today

 

(Point 5) OFT guidance on debt collection...

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there

is no contractual provision

c. not giving an indication in credit agreements of the amount of any

charges payable on default

d. applying unreasonable charges, for example, charges not based on actual

and necessary costs

e. applying charges which are disproportionate to the main debt.

(point4)

no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the demand.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope, dating 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)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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.

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 a 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

 

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

(point 3) Service of documents

1. Interpretation Act 1978, Section 7

 

This 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

Point 2

s127(3) of the CCA1974 provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:


‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

Point 1 (Failure to produce docs attached to claim)

The Defendant notes that Under CPR 16 part 7.3 “where a claim is based upon a written agreement; (1) a copy of the contract or documents constituting the agreement should be attached or served with the particulars of claim”, no such document or contract was attached to the Particulars of claim served by the claimant.

Ok taken stuff from multiple postings, citb, 42man etc.

 

Hope this helps

 

EDIT: Forgot to say, you'll need to take the bits you need/quote out of the blocks above, eg. The default stuff above states for someone who hasnt received a default notice, you'll need to adapt out of that for your instance where you have received one but then another re-created further down the line.

 

S.

Edited October 5, 2009 by the_shadow

[the_shadow]

Hi SB,

 

Your WS looks fine to me, you just need to make it easier to read formatting style, as explained its key that you answer each point that Restons raised and refute it in some way or form. I know you have been advised to put the key points first and thats a valid argument, its not one I'd agree as I like to answer point by point in order but its what ever YOU feel comfortable doing at the end of the day.

 

The key at this hearing is to show that you deserve a proper hearing and not for judgment to be given without the full facts so any mud you can sling against their case helps you.

 

Remember that any Acts you have quoted in the WS need to be printed out, I dont think you need to print out the whole act but the relevant parts you are quoting, likewise any case law you mention... dont forget sections of regulations quoted too.

 

As already advised these need to be clearly labeled and attached to this WS.

 

S.

[the_shadow]

Just seen your second stab... you might want to put it into a word doc and upload as all the numbers make it hard to see if your numbering is coherent and the formatting disappears otherwise

 

S.

[the_shadow]

Attached in pdf format

 

Looks good to me, Point 3... you've mixed form and from

[the_shadow]

Ok, will give them a call. I'm struggling with the CPR 16 7.3 reference- I've found what looks to be appropriate in 7.4 but 7.3 doesn't seem to fit. Do I need to exhibit this?

 

 

SB

 

PRACTICE DIRECTION – STATEMENTS OF CASE - Ministry of Justice

 

Scroll down to the 7.3 reference in the middle .

 

OTHER MATTERS TO BE INCLUDED IN PARTICULARS OF CLAIM

 

7.3

 

Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

S.

[the_shadow]

There was some talk a while back about the destruction of documents (in this case, an original application form that we suspect only now exists digitally) and the money laundering laws?

 

Just in case you dont have it.

 

Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

S.

[the_shadow]

In at two- still at the office at the moment printing out CPR stuff

 

Give em hell ;-)

 

S.

[the_shadow]

Sorry, hit return by accident.

 

When we left the court the barrister asked if I'd consider settling. I said I didn't have much, and did she know the witness statement made about the first class post was rubbish, and I could prove it. She said she didn't and I should let Restons have the evidence. I think she was then trying to get me to admit liability but I changed the subject each time.

 

To say I'm feeling deflated is an understatement. I suspect if I'd made the SO application on the back of the default rather than the POC I'd have had a different outcome.

 

 

Hi SB, sorry it didnt go to plan but remember it didnt go Restons way either you live to fight another day and the helpful judge has confirmed there is an issue with the default and the judge is clued up.

 

As to which reason to request SO for, its all done blindly, some judges I've read details of on here wouldnt have accepted the default argument and some would, its a lottery at the end of the day I'm afraid

 

S.