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

[SB100]

Good morning all... I've managed to come in without the paperwork but no matter, I can pretty much remember it. I'll try and tackle it point by point, with the relevant documents displayed... Thanks for your help and patience.

 

Firstly, they say that they've behaved properly in issuing through the bulk system with a vague POC. I guess that one will depend on the Judge on the day?

 

Here's the 'agreement', which they allege complies. You'll also see the t&c's which, interestingly, their witness statement says "Would have been on the reverse side of the application". Doesn't sound like they have an original.

 

 

 

Here's the default (copy) that they've sent me, which they say fully complies. I have the envelope- it came by UK Post- so therefore 4 days after date of posting? It isn't the same as the actual one I received, also displayed below- is this of any relevance?

 

Here's the one they've attached to the witness statement..

 

 

Here's the one they sent me originally..

 

 

[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.

[SB100]

Thanks S

[supasnooper]

The original DN is defective, so Restons/HFC are stuffed anyway !

 

Do all the dates and the amounts match up between the two documents ?

 

I only ask, as it will nail Restons in court if there are any differences between the original and the supplied copy......... something that has been tried before.

[SB100]

I'll check.

 

I've just received an application for SJ from Restons - not the Court. They say they're going to ask for it to be heard at the same time as my SO/SJ application. They go on to say if I want to rely on any docs I need to do so no later than seven days before their hearing.

 

Interestingly, its less than seven days to my hearing - and the date they're also hoping to have theirs heard.

 

They have also attached a load of statements and seem to be trying the 'you've used it so it must be' approach.

 

Any thoughts?

[citizenB]

They do love to try and complicate things dont they.

 

When do you need to have your paperwork filed by?

[citizenB]

BRW gives some interesting advice in respect of the statement

 

"Would have been on the reverse side of the statement" in the following link

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1849705.html

 

some more advice from BRW

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1850500.html

 

I dont know whether BRW's comments on this WS statement from Capital one (in this instance they were the Defendant as davey77 took them to court) will help you respond to the Ws you have received.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1851778.html

 

HTH

[SB100]

I've just received ANOTHER witness statement. Apparently they forgot to retain a copy of the statement of truth....

Edited October 3, 2009 by SB100

[car2403]

You should get a sealed copy of their Application by the Court - I think they've sent it to you, so you have notice, in which case they can ask the Court to waive the need for disclosure of it again and ask them to deal with it all in the one hearing, instead of adjourning.

 

What's their basis for asking for SJ?

[SB100]

The application has come from Restons directly, not the Court. It was only made on 1st October- the hearing date is set for the 9th.

 

What order are you asking the court to make and why..

 

The defence / amended defence in this action be struck out pursuant to CPR 3 (4)(2)(a) and / or 3.(4)(2)(b) because the defence / amended defence does not disclose any reasonable grounds for defending the claim / bringing a claim and are an abuse of the Court process;

 

In the alternative, and Order for Fummary Judgement (yep, it does say Fummary) against the defendant under CPR Part 24 of the CPR as the defendant does not have a realistic prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial

[car2403]

Yes, but what's in the rest of the form? There must be some supporting evidence to accompany those statements.

[SB100]

These are the scans of the Application Notice direct from Restons- not from the Court. There is also a bundle of statements, a copy of the application form, the default

 

 

 

 

Here's the witness statement..

 

 

[car2403]

When, when, when will they stop blaming the Production Centre for filling inappropriate claims? I can show you threads going back years - some of which are mine! - where they've been told it's not acceptable to file a claim without the documentation

 

They seem to have ignored all the issues surrounding enforceability and the unlawful Default/Termination of the account, which is nice for them, isn't it.

 

Lets hope you get a stringent DJ who will give them what for.

 

Which Court is this and will you be booking a mini bus for the CAGgers that are interested in coming? I hear we get discounted rates if we call it an official CAG meet! ;);)

[SB100]

Liverpool, Friday. Everyone's welcome to either see me win or commiserate when I don't.

 

If anyone knows a suitable solicitor that would put my case forward I'd be grateful. Getting a little nervous.

[car2403]

Hey! If you have some of those commisseratry (spealling? ) drinks beforehand you should be ok.

 

Well, you never know, if you offer the "Solicitor" that turns up to represent Restons (I'm assuming Jeremy won't be available ) more money than they are paying and he might put your side forward at the same time? Can you imagine!

 

Seriously, though, in my experience, paying a Solicitor for this hearing will be a waste of time - you know more about this case than anyone, so you will present it better than anyone recommended. Just get those nerves under control

[SB100]

I'm sure I'll be fine, my main concern is the other side steering this in their direction.

 

How does it work do I present my case to the judge and the other side comment?

 

Thanks again for your help everyone!

[car2403]

The Judge will invite them to start, as they are legally trained and (apparently) know what they are talking about.

 

They will have to present your case, being serious for a second, to the best of their abilities. Solicitors are officers of the Court, not just your opponent, remember.

 

I suspect the Judge might give you a hand, so listen carefully to what he/she says. I've known Judges ask closed questions to give Litigants in Person a nudge in the right direction.

[supasnooper]

The Judge should be aware that you are a Litigant in Person and will advise the counsel acting for Restons.

 

The claimant gets to lead off the proceedings, do not interupt them but make notes of anything you wish to question.

 

You will then be given your opportunity to speak.

 

You will have to get a Witness Statement together and get it into the Court ASAP and send Restons a copy as well.

 

You'll need to oppose their WS point by point and add about the defective default Notice and attach a copy of Woodchester v Swain, together with any other Acts and case law.

[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.

[TJHooker1]

They seem to be ignorant to the fact the default notice is invalid as it does not comply to the prescribed terms of the CCA1974.

 

Sorry to repeat but what will your statement be if the creditor asks the judge to issue a second DN.

 

Are you expecting the judge to say no they cannot, because he may not.

I have a low opinion of these judges and think they live in a bubble, so you will need an answer prepared , I am also seeking this.

 

good luck for next week, very interested in this one as similar to mine.

[tiokim]

subs

[TJHooker1]

Got a great answer from cagger diddydick in the dodgy dn thread and if I can understand it anyone can.

 

I quote

 

"the creditor is BOUND BY HIS WORDS

 

Firstly, if the creditor did not comply with s77/79 then any action he takes whilst he remains in default is unlawful (including trying to enforce/terminate the account)

 

 

However, even if he does have a bona fide executed agreement and you have breached one of its terms

 

he may not end (terminate) the agreement and demand payment of the full balance of the account if you are in arrears UNLESS he first complies with the (STRICT) requirements regarding the issuing of the DN

 

If the DN is faulty, instead of LAWFULLY demanding that you pay the full balance of the account, he has instead UNLAWFULLY terminated the agreement.

 

the MAIN BENEFIT of a credit card agreement to the consumer is that it allows you to borrow money and repay it in installments of you own choosing (subject to a minimum)

 

clearly , removing that benefit from you destroys the agreement as it then becomes one sided

 

The law TOLERATES such law breaking and when this happens it gives the "injured party" two options:_

 

1/ the IP can say to the creditor "sod off pal that is unlawful and i dont accept it so i intend to insist that you fulfil the agreement you signed up to

 

 

 

2./ thats not a nice thing to do pal, and clearly you have demonstrated by your unlawful action that you have no respect for me or the sanctitiy of the agreement and clearly our relationship has broken down, therefore yes ok i accept the agreement is now (unlawfully) rescinded

 

that means i am no longer bound by any of its terms

 

or as john cleese would say

 

it is an ex agreement

 

it is no more

 

its gone to meet its maker

 

it has gone to that great filing cabinet in the sky

 

 

the creditor who was bound by his words unlawfully rescinded the agreement and it came to and end and you accepted that (by your words or deeds) and did not want it to continue, therefore the only way he can ressurect it is to get you to agree

 

and you are hardly likely to want to do that

 

thus he cannot issue another DN because there is no agreement to default- it ended. "

[SB100]

The original DN is defective, so Restons/HFC are stuffed anyway !

 

Do all the dates and the amounts match up between the two documents ?

 

I only ask, as it will nail Restons in court if there are any differences between the original and the supplied copy......... something that has been tried before.

 

Just checked- the original and 'reconstructed' are 1p apart- does this help?

 

Off to write my witness statement now, so will probs need some help shortly. Can't afford to drop the ball now:wink:

[SB100]

Here we go- I've done the bones of it, but is far from legal terms at the moment- so if one of you kind CAGers could help me out I'd be most appreciative.

 

Statement of

Mr xxx xxxx

 

Statement dated

5 October 2009

 

Claim No. xxxx

 

IN THE LIVERPOOL COUNTY COURT

 

BETWEEN:

 

Hfc Bank Limited

Calimant

And

Mr xxx xxxx

Defendant

 

WITNESS STATEMENT

 

I, xxxx xxxx, make this statement in response to the statement of Jeremy Stephen Bouchier, of Restons Solicitors, dated 30th September.

 

1. In response to point 3 of the above mentioned statement, I believe that the claimants claim form is deficient in that the claimant failed to exhibit or attach any supporting documentation regarding their claim.

2. In response to point 6 of the above mentioned statement, the document supplied is am Application form. The title of the form is not correct for it to be treated as a Consumer Credit Agreement. Furthermore, it does not contain any prescribed terms, and, as such, is unenforceable. I do not accept the claim made in Mr Bouchiers witness statement that these terms and conditions would have been on the reverse of the application form supplied, and put the claimant to strict proof. I also seek clarification as to the validity of Mr Bouchiers claim that he knows this would have existed form ‘own knowledge’. Has Mr Bouchier physically handled this agreement? I see no reference to the date that the claimant alleges the contract was instigated. The only reference dates I can see are 4th February 1994 and 23rd February 1994. I can see no reference to the date referred to in the claimants Default Notice, which is 17th February 1994. This appears to be before the claimant signed what they claim is the agreement?

3. In response to point 7 of the above mentioned statement, I would like to make the following points. Firstly, the amounts differ between the Default Notice that I received, and the ‘recreated’ Default Notice attached to Mr Bouchiers statement. Secondly, the ‘recreated’ Default Notice omits a statutory paragraph titled ‘Statutory Notice’. This renders the Default Notice served defective. Thirdly, whilst the Default Notice is dated so as to provide 14 clear days for remedial action, the claimant has not taken in to consideration the time to post. This Default Notice was sent by UK Mail, and is considered to be 2nd Class post. If it were posted as it were dated, on Thursday 15th means deemed served on Tuesday 21st May. Fourteen days starts from the day after service according to regulationss so remedy date should have been Wednesday 6th May to give 14 clear days.

4. In response to point 8 of the above mentioned statement, the lack of a s87 Default Notice proves that the claimant has no course of action. The lack of a properly executed Consumer Credit Agreement, containing prescribed terms, proves that the claimant has no course of action.

5. The claimant has included a hefty ‘collection charge’ to the court summons, which the claimant is well aware that it is not entitled to do.

 

Statement of Truth

 

I believe the facts stated in this witness statement are true

 

Signed …………………………………..

 

Dated ………………………………….

[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