Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[Craftygirl42]

Thanks Hunter, I have something else that needs to be taken care of in the next week, to do with my job,and will take up a fair bit of time then will work on my Witness Statement.

 

You have had lots of help and it will also be of help to me. Especially the bits about the default.

[Craftygirl42]

Right, not heard from the court re the N244 I submitted and just rang and told to ring back later.

 

I have worked on a Witness Statement, and would like someone to have a look. It has to be in next week of all the weeks to pick. Anyway comments appreciated, know it need to be tidied up, but just wanted to get something up for comments

 

WITNESS STATEMENT

 

1. I xxxxof xxxxx am the defendant in this action and make the following statement in reference to the claim made by Phoenix Recoveries (UK) Ltd Sarl – Potomac Recoveries as required in the Court’s Order xxxxxx.

 

 

2. Except where otherwise mentioned I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3.The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

4. All of the exhibits referred to are from the bundle disclosed to me marked CRAFTY GIRL 42 and their related document numbers can be found at the bottom right hand of each page.

 

5.. On the xxxxxI received a Claim Form from Phoenix Recoveries for a debt totalling £xxxx (Exhibit 1). In the Particulars of Claim, refers to a Default Notice which was allegedly issued by HSBC. The claimant has admitted on their filing of standard disclosure (Exhibit 2) that they do not have a copy of the Default Notice in their control and therefore cannot back up there claim that a default notice was ever issued.

 

 

6. On the xxxx I wrote to Mortimer Clarke Solicitors requesting a true copy of the Default Notice as one hadn’t been supplied following the Court Order of XXXX. (Exhibit 3)

 

7. Mortimer Clarke replied to my request stating ‘Default notices issued by HSBC Bank are standard and in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issued the default notice to and it was not returned by the Post Office. The Default Notice is deemed validly served even if you did not receive it, in accordance with Section 176(2) of the Consumer Credit Act 1974.

 

8.. On the claim form (Exhibit 1) according to the particulars of claim the defendant has defaulted in his payment and is in breach of the payment clause of the agreement. It is denied that the defendant neither defaulted nor is not in any breach of any agreement and the claimant is put to strict proof that any such breach has occurred.

 

9. A default notice is a required by section 87(1) of the Act (Exhibit 4) before a creditor can become entitled to take any action in respect of a regulated credit agreement.

 

10. Furthermore section 88(1) of the Act (Exhibit 4) requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (Exhibit 5) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)(Exhibit 6) .

 

 

11. By regulation 2(2) of these regulations, any default notice must include both a description of the agreement sufficient to identify it and the name and postal address of the creditor or owner.

 

 

12. The Claimant has failed to produce a Default Notice in accordance with the Act and association Regulations and I put the Claimant to strict proof that it was served correctly, in the prescribed format served sufficiently so that the step of remedy to the default could have been taken.

 

13. The Claimant therefore is put to strict proof that the Default Notice was served properly under the requirements prescribed to lawfully terminate the account in question. It is respectfully asserted that if such a document was not served then the Claimant's actions could be considered vexatious.

 

 

14.The Claimant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings. I have been unable to compile a fully particularised defence to this action and therefore do not know what exact case I have to meet.

 

15. The Defendant seeks an order that the claimant’s action is struck out or otherwise dismissed on the grounds that any claim cannot succeed and that the Claimant do pay the Defendant’s costs.

 

16. I respectfully request the right to amend my witness statement upon the receipt of the documents that the claimant has failed to provide

Edited December 14, 2009 by citizenB
removed personal information.

[Craftygirl42]

Just rang the court and a letter was sent out on Friday, re my N244, not received, so she is going to send out a copy today. Lets hope it was good news and the Judge has ordered Marlins to supply the default and not let them get out of it

[citizenB]

Had a bit of a read around. Just not sure what documents I should enclose.

 

I have lots of Without Prejudice letters from them, which gets my back up as they are ones that they admit they dont have a DN. I take it that I still cant use these

 

 

Rather interesting they should mark the above letter WP ??

 

Ok, the lack of a default notice or the fact that it is invalid for some reason ie not enough time, improperly produced (not in prescribed format), wrong amounts etc is a complete defence in itself and reason for asking for the claim to be struck out. All the information you require in respect of postal regs, etc is in the defence bleow.. HTH

 

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. That way, there is no need to make an appliaction and shell out £40.

 

 

 

 

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.

[citizenB]

Did I also see somewhere that no Notice of Assignment has been produced ?

[Craftygirl42]

I have the NOA CB. Its really the lack of default that I am preparing my witness statement. I must admit I must post up the agreement, but sure its ok as I first signed an application form and then they sent me an agreement to sign before issuing the card.

[Craftygirl42]

Marlins did manage to get the Judge to change the original order to let them off the hook re the default notice, but I sent a N244 and waiting for a copy of the judges reply, to see if they have upheld Marlins request

[citizenB]

Marlins did manage to get the Judge to change the original order to let them off the hook re the default notice, but I sent a N244 and waiting for a copy of the judges reply, to see if they have upheld Marlins request

 

Hmmm, this smacks to me as though they either a) didnt send one, or b) sent one that failed miserably and they have decided to go with the "served, even if not received" theory.

 

You are really going to have to push for this. They can and probably will, produce a "template - this is the kind of thing we would have sent". You only have to look round the forums to see that they DONT produce valid defaults and often terminate the account on the back of these.

[Craftygirl42]

Any ideas on how I can improve the witness statement please CB

[citizenB]

Should they attempt to offer a "template DN" then you should be looking carefully at the format. It is a prescribed format and the regulations say "must" not "should, perhaps, maybe".. but MUST.

 

The Default notice is an important part of the procedure to enable a creditor to disengage itself from the contract. So unless they got it right then they lose their rights.

 

The legislation was amended on 19th December 2006. The amount of time afforded the debtor to remedy the breach was changed from 7 days to 14 days. The dates should be looked at carefully. If a DN was posted on a Friday, then the saturday and sunday are discounted and the postal time starts from the following Monday. You must be given 7 or 14 clear days to remedy.

 

1st class post = 2 working days

2nd class post = 4 working days

UK Mail/TNT = Most companies use this method of posting. The Economy 1st class package is 3 days to be delivered to Royal Mail, then you can add on however much time RM will take to deliver to you. I have known UK Mail take up to 7 days to be delivered.

 

All the above times are to be deducted from the amount of time the company has allowed for remedy.

 

 

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

firstly,

Parties to agreement

 

2

 

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

 

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

 

the regulations do stipulate that it must be as laid out in the regs verbatim as set out in section 2 (5)

 

Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or

bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

HTH

[Craftygirl42]

Right the court has replied to my N244

 

It says the DJ has stated

 

The Defendants application is inappropriate - it is raising issues of argument which can be raised at trial. If the Claimant has carried out a reasonable search then the court will determine whether the claim can proceed

[citizenB]

Right the court has replied to my N244

 

It says the DJ has stated

 

The Defendants application is inappropriate - it is raising issues of argument which can be raised at trial. If the Claimant has carried out a reasonable search then the court will determine whether the claim can proceed

 

Oh... b*gger. Not fair.

 

Ok, I think I have just one or two questions.

 

account opened in 2003 - Yes ?..

 

Then you receive a letter nearly 2 years later which asks for a signature ?

 

On your disclosure list you identify in the first section

 

NOA dated 25.10.2007

NOA dated 01.09.2008

 

Are these two different assignees ?

 

Then in point 3.3 under Various documents

 

You identify again, 2 x NOA from Marlin. Are these the same documents as from the first section.

 

You advise that when you sent the CCA request in, the N1 was automatically issued. What was the space of time between requesting the CCA and them issuing the N1 ?

[Craftygirl42]

Oh... b*gger. Not fair.

 

Ok, I think I have just one or two questions.

 

account opened in 2003 - Yes ?..

 

Account was opened it 2005

Then you receive a letter nearly 2 years later which asks for a signature ?

 

No, they had first sent me an application form to sign, then sent me a CCA to sign before the issued the card

On your disclosure list you identify in the first section

 

NOA dated 25.10.2007

NOA dated 01.09.2008

 

Are these two different assignees ?

 

Both are Pheonix recoveries, but each had a different compartment listed, one was Potomac and one was Tessara....both were handled by Marlin

 

Then in point 3.3 under Various documents

 

You identify again, 2 x NOA from Marlin. Are these the same documents as from the first section.

 

Yes

You advise that when you sent the CCA request in, the N1 was automatically issued. What was the space of time between requesting the CCA and them issuing the N1 ?

 

 

I think I mentioned the LBA was sent on the 17 Feb and the N1 Issued on the 26th, so not enough time to remedy that, given that they gave me 7 days. Once I received the LBA I then sent the CPR letter as advised on here as they were threatening legal action. I requested a copy of my CCA exactly a year before they issued the N1

[citizenB]

ok CG, thanks. I am a little puzzled by those NOAs though.. Did you request the Deed of Assignment ?

[Craftygirl42]

I havent at this stage. I am sure other people on here got the same thing, I remember others mentioning it

Edited December 15, 2009 by Craftygirl42

[citizenB]

Check your pms...

[citizenB]

Have copied these over from another thread

 

Original Creditor HSBC.

 

Particulars of Claim state that assignment took place on 5 October 2007. The Claimant is Phoenix Recoveries Limited

 

1st NOA dated 25th October 2007 states

 

"We give you notice that we have acquired from Phoenix Recoveris (UK) Limited S.A.R.L acting in the name and on behalf of its compartment "Tessara Recoveries" as assignee of HSBC Bank plc ("HSBC") and all of HSBC's rights in to and under the above detailed account. We will be administering the account."

 

2nd NOA is dated 1 September 2008 and states

 

"We give you notice that on 18 July 2008 Phoenix Recovers (UK) Limited s.ar.l, acting in the name and on behalf of its Compartment "Potomac Recoveries" by an assignment acquired all rights in, to and under your above detailed account and became the creditor to whom you owe the current outstanding blanace of £ X, XXX.xx

 

 

How does this affect the claim made against the OP please ?.

Edited December 16, 2009 by citizenB
tidy up

[citizenB]

Would appreciate comments on the following Witness Statement. It needs a bit of a tidy up, numbering of paragraphs. At the moment, it would be good to have comments as to the content and formatting. Many thanks.

 

PS, the NOAs referred to are in post # 167.

No Default Notice has been received.

 

***********************************

 

 

WITNESS STATEMENT

 

1. I xxxxof xxxxx am the defendant in this action and make the following statement in reference to the claim made by Phoenix Recoveries (UK) Ltd Sarl – Potomac Recoveries as required in the Court’s Order xxxxxx.

 

2. Except where otherwise mentioned I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3.The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

4. All of the exhibits referred to are from the bundle disclosed to me marked CRAFTY GIRL 42 and their related document numbers can be found at the bottom right hand of each page.

 

The Defendant admits entering into an agreement with HSBC, and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the HSBC may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

The Defendant denies entering into an agreement with the Claimant.

 

The Claimant’s POCs advise the defendant entered into an agreement with HSBC on 21st March 2005, this is incorrect (EXHIBIT) [ comments please on this paragraph. The OP signed 12 March - HSBC signed 16 March - First transaction 29 March]

 

Default Notice

 

 

The Claimant claims, the Defendant has defaulted in his payment and is in breach of the payment clause of the agreement. (Exhibit 1) It is denied that the Defendant has defaulted or is in breach of any agreement and the Claimant is put to strict proof that any such breach has occurred.

 

The Claimant avers a Default Notice was issued by HSBC. The Defendant has not had sight of this default notice.

 

Before a creditor can become entitled to take any action in respect of a regulated credit agreement a default notice is a required by section 87(1) of the Act

Furthermore section 88(1) of the Act (Exhibit 4) requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (Exhibit 5) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) (Exhibit 6).

 

 

By regulation 2(2) of these regulations, any default notice must include both a description of the agreement sufficient to identify it and the name and postal address of the creditor or owner.

 

The Claimant has failed to produce a Default Notice in accordance with the Act and associated Regulations and I put the Claimant to strict proof that it was served correctly, in the prescribed format served sufficiently so that the step of remedy to the default could have been taken.

 

On the xxxx, the Defendant wrote to Mortimer Clarke Solicitors requesting a true copy of the Default Notice as one hadn’t been supplied following the Court Order of XXXX. (Exhibit 3)

 

Mortimer Clarke replied to this request stating ‘Default notices issued by HSBC Bank are standard and in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issued the default notice and it was not returned by the Post Office. The Default Notice is deemed validly served even if you did not receive it, in accordance with Section 176(2) of the Consumer Credit Act 1974.

 

The Claimant admits on their filing of standard disclosure (Exhibit 2) that they do not have a copy of the Default Notice in their control and therefore cannot substantiate their claim that a Default notice was ever issued.

 

The Consumer Credit Act 1974 s87 & 88 (Exhibits xx) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

33. 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.

 

It is averred that no valid default has been served upon me and therefore the Claimant is precluded from taking this action.

 

 

Notice of Assignment

 

The Claimant claims the account was assigned to them from HSBC on 5th October 2007

 

It is averred that the Notice of Assignment supplied by the Claimant fails to comply with the law & associated regulations covering such actions, that is The Law of Property Act 1925 S136 & S196(4).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that the defendant is entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

The Claimant has issued two Notices of Assignment to the Defendant.

 

(EXHIBIT) Dated 25th October 2007. There is no date of assignment mentioned in the notice. It is also difficult to establish to which company, HSBC did assign the account to.

 

(EXHIBIT) Dated 1st September 2008. The date of assignment is advised as 18th July 2008, but this assignment takes place, not between HSBC and the Claimant, but between associated companies.

Section 136 of the Law of Property Act 125 states the assignment has to be under the hand of the assignor/assignee so that no reasonable doubt can be found as to who owns the account.

 

It is, therefore not admitted that the account referred to was lawfully assigned to the Claimant. The Defendant has not been permitted to inspect the Assignment(s) relevant to these proceedings and has therefore been unable to satisfy herself as to whether the Assignments are valid which she is entitled to do as a matter of Law.

 

Therefore in order to establish the authenticity of any alleged assignment of this debt, the Defendant requires sight of the Deed of Assignment.

 

 

FURTHER POINTS

 

The claimant seeks to claim interest ‘at the rate pursuant to the agreement namely £xxx and continuing until judgment or sooner payment at the daily rate of £xxx or in the alternative interest pursuant to Section 69 of the County Courts acts 1984; also interest at the rate pursuant to the Agreement from the judgment date until payment’. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974. It is therefore denied the Claimant is entitled to this sum.

 

In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

If the court considers such action inappropriate, it is requested that the court order the Claimant to produce the following documents at a hearing:

 

(a) a copy of any default notice sent by the Claimant in respect of this account & the proof of mailing of such.

(b) the deed of assignment in order to establish the Claimant has a right of action.

 

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

Dont know where to site the paragraph below.. if it should be included at all.

 

A Debt Management Plan was agreed with HSBC with a montly payment of £XX.xx . Due to the lack of statements covering the period between 18 May 2006 to date, the claimant is unable to verify the balance claimed in the Particulars of Claim is correct.

Edited December 16, 2009 by citizenB

[Craftygirl42]

thanks CB for your help. xx

 

Will be back later to see if there are any questions and hopefully some help

[MAGDA]

Would appreciate comments on the following Witness Statement. It needs a bit of a tidy up, numbering of paragraphs. At the moment, it would be good to have comments as to the content and formatting. Many thanks.

 

PS, the NOAs referred to are in post # 167.

No Default Notice has been received.

 

***********************************

 

 

WITNESS STATEMENT

 

1. I xxxxof xxxxx am the defendant in this action and make the following statement in reference to the claim made by Phoenix Recoveries (UK) Ltd Sarl – Potomac Recoveries pursuant to the Court’s Order xxxxxx.

 

2. Except where otherwise mentioned I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3.The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

4. All of the exhibits referred to are from the bundle disclosed to me marked CRAFTY GIRL 42 and their related document numbers can be found at the bottom right hand of each page.

 

Whilst it is admitted that an agreement was entered into with HSBC regulated by The Consumer Credit Act 1974 (The Act). no admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the HSBC may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

The Defendant denies entering into an agreement with the Claimant - if the defendant admits entering into an agreement - can remove this.

 

The Claimant’s POCs advise the defendant entered into an agreement with HSBC on 21st March 2005, this is incorrect (EXHIBIT) [ comments please on this paragraph. The OP signed 12 March - HSBC signed 16 March - First transaction 29 March] - although the date is wrongly stated it probably won't make a huge difference in court - at most they may just have to amend their POC.

 

Default Notice

 

 

The Claimant claims, the Defendant has defaulted in his payment and is in breach of the payment clause of the agreement. (Exhibit 1) It is denied that the Defendant has defaulted or is in breach of any agreement and the Claimant is put to strict proof that any such breach has occurred. - I don't think I would bother with this at all as more like a defence, where this will already have been stated.

 

The Claimant avers a Default Notice was issued by HSBC. The Defendant has not had sight of this default notice.

 

Before a creditor can become entitled to take any action in respect of a regulated credit agreement a default notice is a required to be served by section 87(1) of the Act

Furthermore section 88(1) of the Act (Exhibit 4) requires that a default notice must be in the prescribed form.

 

The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (Exhibit 5) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) (Exhibit 6). - again don't think you need this, just the factual comments.

 

 

By regulation 2(2) of these regulations, any default notice must include both a description of the agreement sufficient to identify it and the name and postal address of the creditor or owner.- same again here.

 

The Claimant has failed to produce a Default Notice in accordance with the Act and associated Regulations and I put the Claimant to strict proof that it was served correctly, in the prescribed format served sufficiently so that the step of remedy to the default could have been taken.

 

On the xxxx, I wrote to Mortimer Clarke Solicitors requesting a true copy of the Default Notice as one hadn’t been supplied following the Court Order of XXXX. (Exhibit 3)

 

Mortimer Clarke's response stated that ‘Default notices issued by HSBC Bank are standard and in a prescribed format in compliance with the requirements of the Consumer Credit Act 1974. HSBC issued the default notice and it was not returned by the Post Office. The Default Notice is deemed validly served even if you did not receive it, in accordance with Section 176(2) of the Consumer Credit Act 1974. - is this Mortimer Clarke stating this, or are you quoting this section yourself? You could add a new point underneath stating that without sight of the Default Notice I cannot know if it was in the prescribed form or complied with regulations (words to that effect)

 

The Claimant admits on their filing of standard disclosure (Exhibit 2) that they do not have a copy of the Default Notice in their control and therefore cannot substantiate their claim that a Default notice was ever issued.

 

The Consumer Credit Act 1974 s87 & 88 (Exhibits xx) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

33. 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. - again wouldn't bother with this, as will again be detailed in defence.

 

It is averred that no valid default has been served upon me and therefore the Claimant is precluded from taking this action.

 

 

Notice of Assignment

 

The Claimant claims the account was assigned to them from HSBC on 5th October 2007

 

It is averred that the Notice of Assignment supplied by the Claimant fails to comply with the law & associated regulations covering such actions, that is The Law of Property Act 1925 S136 & S196(4).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists - can remove this.

 

I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). - can remove this

 

It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169). - could remove this

 

The Claimant has issued two Notices of Assignment to the Defendant.

 

(EXHIBIT) Dated 25th October 2007. There is no date of assignment mentioned in the notice. It is also difficult to establish to which company, HSBC did assign the account to.

 

(EXHIBIT) Dated 1st September 2008. The date of assignment is advised as 18th July 2008, but this assignment takes place, not between HSBC and the Claimant, but between associated companies.

Section 136 of the Law of Property Act 125 states the assignment has to be under the hand of the assignor/assignee so that no reasonable doubt can be found as to who owns the account.

 

It is, therefore not admitted that the account referred to was lawfully assigned to the Claimant. The Defendant has not been permitted to inspect the Assignment(s) relevant to these proceedings and has therefore been unable to satisfy herself as to whether the Assignments are valid which she is entitled to do as a matter of Law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

Therefore in order to establish the authenticity of any alleged assignment of this debt, I require sight of the Deeds of Assignment.

 

 

FURTHER POINTS

 

The claimant seeks to claim interest ‘at the rate pursuant to the agreement namely £xxx and continuing until judgment or sooner payment at the daily rate of £xxx or in the alternative interest pursuant to Section 69 of the County Courts acts 1984; also interest at the rate pursuant to the Agreement from the judgment date until payment’. I note that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974. It is therefore denied the Claimant is entitled to this sum.

 

In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

If the court considers such action inappropriate, it is requested that the court order the Claimant to produce the following documents at a hearing:

 

(a) a copy of any default notice sent by the Claimant in respect of this account & the proof of mailing of such.

(b) the deed of assignment in order to establish the Claimant has a right of action.

 

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

Dont know where to site the paragraph below.. if it should be included at all.

 

Hi CB/Craftygirl, made some amendments in blue and orange - it's what I would do if it was mine, but up to you if you decide to change. I know you have already said you are going to number each point, so that is ok.

 

Hope it helps - not meaning to pick holes in it CB as you have done a really great job.

 

Magda:)

Edited December 16, 2009 by MAGDA

[citizenB]

Magda, thank you. That was my main concern that there were some areas that were too much like a Defence. Your help is much appreciated. It will also make it more "user friendly" by being reduced in lenght and with the "jargon" removed.

 

 

 

[Craftygirl42]

Looks like we are getting there now.

 

Thank you so much CB and Magda xx

[cymruambyth]

Hi CG I've had a look at your WS and don't think can add anything to Magda's alterations, as my experience is too limited.

[MAGDA]

Magda, thank you. That was my main concern that there were some areas that were too much like a Defence. Your help is much appreciated. It will also make it more "user friendly" by being reduced in lenght and with the "jargon" removed.

 

 

 

 

Hi CB, Craftygirl is lucky to have you on board. You've done a great job, so hopefully will do the trick for her.

 

Looks like we are getting there now.

 

Thank you so much CB and Magda xx

 

 

Hope things go well for you Craftygirl. All the best,

 

Magda

[Craftygirl42]

Hi CB, Craftygirl is lucky to have you on board. You've done a great job, so hopefully will do the trick for her.

 

 

 

 

Hope things go well for you Craftygirl. All the best,

 

Magda

 

 

Thank you Magda, I am sure I will be back needing more help once this stage is over, then its the next one

 

Just hope CB doesnt get fed up with me.