Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[hunni2006]

I had a hearing last week which the judge adjourned because it was only listed for 1 hour, and looking at the case he said there was no way that we would resolve it in an hour.

 

just waiting for a new date.

[avatari]

okay, sorry to hear about it dragging on. let us know how the next hearing goes - good luck!

[straftat]

Bump

[hunni2006]

Adjourned?? What on earth happened?

 

 

I hope no news is good news ...

 

Why ?

 

The judge took one look at the case & said that there was no way that it would be heard in 1 hour! has been re listed for 3 hours next month.

 

will post more details later, strapped for time atm.

[citizenB]

The judge took one look at the case & said that there was no way that it would be heard in 1 hour! has been re listed for 3 hours next month.

 

will post more details later, strapped for time atm.

 

ah, right.

[hunni2006]

ah, right.

 

'twas not a surprise tbh,:-| I had repeatedly suggested to their solicitors that 1 hour would be too short, and we should ask the court to reschedule for around 1/2 a day... they disagreed and insisted that we attend as planned.

 

We didn't even get in to see the judge, he just reviewed the papers and sent us a message out. we agreed draft directions, i.e that either party can file further evidence up to 7 days before & hearing be rescheduled for 3 hrs.

 

so that's pretty much it, apart from their rep saying that they did not need a default notice.... not sure where to begin on that one. I have seen it mentioned on another thread, but no one came up with a response:???:...

 

if anyone has any ides on the above I'd be glad to hear them...

oh, they also sent me a statement of costs so far... to the tune of nearly £2K which arrived the day before the hearing... I'm sure it was designed to undermine my confidence and throw me off balance for the hearing.... which it did for about 5 minutes, then I got annoyed and sent them a lovely letter reminding them that at the directions hearing they had asked about costs, and the judge had said NO, and telling them in the politest terms to B*gger off!

[GhostDebt]

Hi hunni

Are you fully prepared for next month? or do you need any further assistance?

Any questions just ask and someone should respond.

Regards

[hunni2006]

Hi hunni

Are you fully prepared for next month? or do you need any further assistance?

Any questions just ask and someone should respond.

Regards

 

:grin: thanks Ghostdebt. there is one question......

 

apart from their rep saying that they did not need a default notice.... not sure where to begin on that one. I have seen it mentioned on another thread, but no one came up with a response:???:...

as for being prepared.... who the heck knows! lol, I can say that I am reading and preparing as much as I possibly can.... unfortunately, I'm one of those people who spends as much time second guessing myself as much as anything else! never sure I've got things right.

 

tbh, it's still confusing me how they think that they have a case! there have been no default notice, termination notice, and no proof of delivery of a notice of assignment, there are fabricated letters entered into evidence, allegedly supported by computer printout references, but I have the actual letters, and they are completely different. the 'agreement' is a set of T&C from july 07 with NO identifying information, so..... where to start!

Edited March 23, 2010 by hunni2006
can't spell

[Rhia]

Hi Hunni, sorry not to have been around lately but you've been in good hands. Yes they do hit you with costs to frighten you so don't let it. Also there is nothing stopping you calculating your own costs as a L-in-P and sending them so they know what else they will face when they lose this case.

Keep your chin up. There is obviously much for the judge to consider or he would just have rammed the case through...in their favour. He didn't so although I wouldn't ever consider feeling too confident he can see that all is very odd indeed and needs exploring.

Perhaps they will back off now.

[citizenB]

so that's pretty much it, apart from their rep saying that they did not need a default notice.... not sure where to begin on that one. I have seen it mentioned on another thread, but no one came up with a response:???:...

 

if anyone has any ides on the above I'd be glad to hear them...

 

 

 

 

Did they give any reason for saying they didnt need to do this ?

 

You may want to read up as many of BRW's posts with regard to Default Notices. This is his latest offering. Ignore the dates as they were for a specific thread.

 

 

BRW - Are you going to court – Default Notice – Must read

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2832151.html

 

 

Hello E!

 

The above s87(1) Default Notice, assuming they sent it via normal Post, is clearly defective because it has not allowed you the 14 clear days that Parliament demands must be the case.

 

01/09/2009 is a Monday, so if we assume they posted it via 1st Class Post, and did actually Post it on the Monday, then it works out like this (if they cannot prove they Posted via 1st Class, or you have the Envelope and that shows 2nd Class or worse, then 2nd Class will have to be assumed by the Court which makes it even worse for them, see the second table of dates below this one):

Quote:

s87(1) Default Notice if Posted via 1st Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 1st Class (if they can prove it).

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = Date of Service (+2 days from Posting).

04/09/2009 Thur = 1st Clear Day

05/09/2009 Fri = 2nd Clear Day

06/09/2009 Sat = 3rd Clear Day

07/09/2009 Sun = 4th Clear Day

08/09/2009 Mon = 5th Clear Day

09/09/2009 Tue = 6th Clear Day

10/09/2009 Wed = 7th Clear Day

11/09/2009 Thur = 8th Clear Day

12/09/2009 Fri = 9th Clear Day

13/09/2009 Sat = 10th Clear Day

14/09/2009 Sun = 11th Clear Day

15/09/2009 Mon = 12th Clear Day

16/09/2009 Tue = 13th Clear Day

17/09/2009 Wed = 14th Clear Day

18/09/2009 Thur = The earliest day they can demand payment.

 

Thus, 18/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can prove it was Posted via 1st Class. If not, then move on to the 2nd Class schedule below:

Quote:

s87(1) Default Notice if Posted via 2nd Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 2nd Class.

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = DN in transit +2 days.

04/09/2009 Thur = DN in transit +3 days.

05/09/2009 Fri = Date of Service (+4 days from Posting).

06/09/2009 Sat = 1st Clear Day

07/09/2009 Sun = 2nd Clear Day

08/09/2009 Mon = 3rd Clear Day

09/09/2009 Tue = 4th Clear Day

10/09/2009 Wed = 5th Clear Day

11/09/2009 Thur = 6th Clear Day

12/09/2009 Fri = 7th Clear Day

13/09/2009 Sat = 8th Clear Day

14/09/2009 Sun = 9th Clear Day

15/09/2009 Mon = 10th Clear Day

16/09/2009 Tue = 11th Clear Day

17/09/2009 Wed = 12th Clear Day

18/09/2009 Thur = 13th Clear Day

19/09/2009 Fri = 14th Clear Day

20/09/2009 Sat = The earliest day they can demand payment.

 

Thus, 20/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can't prove it was Posted via 1st Class, or you have the original Envelope that proves 2nd Class Post was used, or you have some other evidence that the Envelope was not Posted on the same day as it was issued (such as a Franking Date Mark that says 2nd September 2009 or later, in which case, the clock starts ticking later).

 

The reason I have typed the above, is so that you can see there is no way you have been allowed the 14 clear days if this Notice was sent to you via Post.

 

 

Your Strongest Argument

 

That defective s87(1) Default Notice is your strongest Application argument so, it's the one you hit them with first and hardest. Don't get bogged down saying too much else, otherwise you will just soften the impact of your main point. To ram that home, you must know the issues backwards, and be willing and able to make it clear that there can be no leeway on this issue.

 

This has nothing whatsoever to do with morals, so do not let the Judge try to get past this by saying daft things like...

Quote:

...were you going to pay it?

 

...you've spent it so you must pay it back.

 

That is not for the Judge to rule upon if the Notice is defective. The acid test is the Notice itself. Was it set out in the Prescribed form using the Prescribed words, did it accurately state what you had done wrong in relation to the Terms of the Agreement, did it accurately state the exact default amount they were entitled to demand that you pay and did the Notice give you 14 clear days?

 

If the answers to any of the above are no, then the Notice is defective, and the Claimant loses any right to enjoy s87 benefits. If the Agreement is also Terminated, either by a Termination Letter because they have taken enforcement action not otherwise allowed unless they had secured s87 benefits, then that Agreement is ended, and they cannot thereafter issue an effective s87(1) Default Notice.

 

 

Further Reading

 

You must read the Default Notice Thread by Surfaceagentx20, and you must read this case and include it with your Skeleton Argument (and send the enemy a copy well ahead of Court):

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

 

Note the Judge's comments about accuracy, i.e. if they ask for something to which they are not entitled then, in his Judgment, the Notice is defective.

 

Also, note that the Judge in that case does not say that a Court can overlook anything if it is de minimis, he only says they might overlook something...i.e. if the matter were very small. I would suggest that would be something like missing a full stop, or a minor issue like that.

 

 

Fighting a de minimis arugument:

Failing to set the Notice out in the Prescribed way, using the Prescribed Wording is not de minimis.

Failing to state what you have done wrong with accuracy in order that this fault can be remedied is not de minimis.

Failing to state the exact default sum you need to pay in order to remedy the default is not de minimis.

Failing to allow the Statutory number of clear days that Parliament demands that you must be allowed is not de minimis.

 

The Court cannot allow for any such errors, because there is nothing in either the Act nor the supporting Statute that permits any leeway. The phrase de minimis is not mentioned anywhere that matters. In any event, all this phrase means is a Court can overlook a very small matter that is of little concern.

 

If the Judge or the enemy try to use a de minimis argument, then ask them to direct you to the area of the Law that mentions they can do this? i.e. just so that you can direct people to this point later when the Appeal comes up!

 

But, seriously, get your ahead around this, and realise that there is no leeway if they get the Notice wrong. It cannot be fixed, unless they are entitled to issue an effective Notice, and to do that, the Agreement has to be live, which it cannot be if they have taken you to Court to demand early payment.

 

 

The Right to Demand Early Payment Depends on s87

 

The right to demand early payment is only available to them if they are already in possession of an effective s87(1) Default Notice that you failed to remedy once the Statutory time had elapsed. Without that, it's a Catch 22 situation for them, because they need an effective Notice to use s87 and, if they are found to have used s87 without an effective Notice, then they have clearly Terminated the Agreement via unlawful Rescission of Contract. That's because they have demanded something from you to which they were not entitled, so have shot themselves in the foot because it is then they who have broken the Agreement by doing this.

 

 

Secondary Arguments

 

Once you have banged home the above issue, then of course the next main points you can hit them with is their poorly pleaded Particulars of Claim (read CPR so that you understand CPR 16), and their monstrous attempt to try and make you pay s69 County Courts Act 1984 8% Simple interestin relation to a Claim that is based upon a Regulated Agreement.

 

Take a copy of this, and include it in your Skeleton [note s2(3)(a)]:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

 

Minor Arguments

 

By all means mention the way they have behaved generally, but keep it short and sweet, and use this mainly to show how unreasonable they have been, and how Court could have been avoided had they acted more decently.

 

 

P.P.P.P.P.P.P.

 

Remember the above! Proper Prior Planning Prevents P*** Poor Performance!

 

Get your notes ready, then spend some time reading out aloud, from memory, what you want to say. If you stumble, then make some brief notes to help yourself. Then try again, and again, and again.

 

If you keep getting it wrong, then by all means draft a speech, and tell the Judge you are a Litigant in Person, unfamiliar with speaking in Court, so would the Judge mind if you read out your speech from your pre-prepared notes. Stand up, speak clearly and slowly, and state your case that supports your Application.

 

Make sure your Court Bundle is next to you, and practice how you can turn to anything you might need to refer to, such as CCA s87, CCA s88, the Statute on Default Notices [Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 SI 1983-1561], the above Case that covers Default Notices, and anything else you think would be useful.

 

 

A Quick Self-Test

 

To test yourself, try working out answers and strong counters to the following questions and invalid statements:

A Default Notice is not important, I can overlook that, what matters is the Agreement.

Point out that the proper execution of the Agreement is another matter, and does not affect the key issue over their loss of any right of action if they have failed to end the Agreement appropriately.

The Notice is dated the 1st and they want payment by the 15th, that's over 14 days, is it not. What's your problem?

Point out that's not allowing 14 clear days, see the Tables above based on 1st and 2nd Class Post, explain the way 14 clear days must be allowed, and the consequences of getting it wrong because they lose all s87 benefits for all time.

You clearly owed them money, are you denying that?

Point out that it is for the Claimant to prove that a properly executed Regulated Credit Agreement was made, and can be produced before the Court (CPR PD16 7.3), and then for the Claimant to prove they have secured a right of action to demand early payment of sums not otherwise due before they elected to end such an Agreement. Say you are not denying that an Agreement was made, but questioning if it was properly made, and if they have ended it in such a way that allows them to seek early payment of sums not otherwise due.

Demanding early payment is not enforcement, and does not end the Agreement.

Point out that the recent McGuffick case, and the latest OFT guidelines confirm that demanding early payment is enforcement, and requires s87 benefits. Those benefits are only secured by following s87 and s88 to the letter. Taking such steps without s87 benefits, is a breach of the Agreement on the part of the Creditor and amounts to an unlawful rescission entitling you to a valid Claim for damages against them for ending the Agreement in this way

The default sum is correct if they deduct the unlawful charges they have since offered to repay and/or have since repaid.

Point out that a bank is, or should be, in a position to get their figures right.

Nobody would accept errors when checking their bank balance via ATM, so it's only reasonable that a bank should know, to the penny, what is owed at any one time. If they have made mistakes, or levied charges to which they were not entitled, then this destroys any credibility that the sum they claimed in the Notice was properly owing and due. The above Case makes it clear that demanding sums to which a bank is not entitled, will render any Notice defective on that basis alone.

The Default Notice is headed correctly, and you must've known what it was about, so why should I not overlook these minor errors that you say exist.

Point out that the wording of a Notice is Prescribed, there can be no room for error. If the Judge agrees that the Notice contains errors, and/or mistakes and/or has not allowed the Statutory time, then it can only be the case that the Notice is defective and must rule on that basis. To rule otherwise, needs to be supported, and say you cannot see anything in either the Act or supporting Statute that permits defects in a Notice to be overlooked. Direct the Judge to Swain...and have ready, read out aloud, some of the best and hardest hitting quotes from that Case.

 

 

So, start asking similar questions, and start thinking how you would counter them. Then go back and re-word your main opening statement so that you try to cover such issues before the Judge starts asking them!

 

The trick is to go in hard from the outset, and leave the Judge no sensible option but to agree with you! But do be ready to answer any questions, and field any fast balls the Judge shoots at you to probe any gaps in your Application's verbal opening statement on the day.

 

If you can spot a problem today, you can bet the Judge will spot it on the day. So keep going over this, and keep refining your line of attack until you have covered all the key issues. Then condense it so the Judge does not fall asleep while you read it all out!

 

I do hope this helps.

 

Cheers,

BRW

 

[hunni2006]

Hi Hunni, sorry not to have been around lately but you've been in good hands. Yes they do hit you with costs to frighten you so don't let it. Also there is nothing stopping you calculating your own costs as a L-in-P and sending them so they know what else they will face when they lose this case. I intend to.

Keep your chin up. There is obviously much for the judge to consider or he would just have rammed the case through...in their favour. He didn't so although I wouldn't ever consider feeling too confident he can see that all is very odd indeed and needs exploring.

Perhaps they will back off now. Hi Rhia, It would be nice... but I don't think that's about to happen:mad: I received a second witness statement, along with the alleged 'sale agreement' between the OC and DCA.... with almost the entire document blanked out.... and with NO identifying info on it.

 

Did they give any reason for saying they didnt need to do this ? No... and that's what was worrying, he was very smug about it... he just said that they didn't need a default notice.

You may want to read up as many of BRW's posts with regard to Default Notices. I am doing.This is his latest offering. Ignore the dates as they were for a specific thread. Thank you

 

One thing I need to ask.... the need for a default notice seems to be related to the demand for early repayment..... but if the debt was a credit card, and no payments had been made for over 2 years, would it be classed as early repayment? could that be why they are confident that they don't need a DN?:confused:

[Hadituptohere]

I think its a case of: 2 months after you stopped paying the minimum payments on your CC your in default of your contract and for the creditor to demand rectification or early repayment of the full amount, or take legal action they are required to issue a default notice

 

Im sure some of the big hitters will confirm

 

Hadituptohere

[hunni2006]

the need for a default notice seems to be related to the demand for early repayment..... but if the debt was a credit card, and no payments had been made for over 2 years, would it be classed as early repayment? could that be why they are confident that they don't need a DN?:confused:

I think its a case of: 2 months after you stopped paying the minimum payments on your CC your in default of your contract and for the creditor to demand rectification or early repayment of the full amount, or take legal action they are required to issue a default notice

 

Im sure some of the big hitters will confirm

Hadituptohere

 

 

 

thanks for your help, but what I really am trying to find out is... if they have waited to take me to court for over 2 years since the date of the last payment, would there be any NEED for them to have sent me a default notice.... as I would think demanding the full amount is not EARLY repayment is it?..... I'm getting confused!

 

[lilly white]

ok may i ask who took you to court.

 

Do you have copy of the poc.

 

Where is the CCA

 

Where is the Default notice

 

When was the account terminated

 

Do you have a NOA,

 

Do you have all the the statements.

[lilly white]

well i have try to read the tread some of the docs i cant read however this what i used as a starting point.

 

 

In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and xxxxxxxxxxxx Bank, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter. Thirdly it must establish thatxxxxxxxxxxxxxx Bank complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not xxxxxxxxxxxx Bank then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

 

DEFAULT NOTICE

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the claim.

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 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

 

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

[hunni2006]

ok may i ask who took you to court. the DCA

Do you have copy of the poc. there are 2... the first was struck out, and the amended poc are further back on this thread.

 

Where is the CCA they have sent a set of T&C... copy further back on the thread.

Where is the Default notice there is no mention of a default notice in their pleadings or evidence, there has been no disclosure of one from the OC ( sent a SA request) but a default date of dec 07 is on my credit file, a copy of a laughable default notice was supplied amongst documents provided by the DCA in response to my SA request... that gives a date in July o7, with figures that are nowhere near correct. a copy of that, or a link to it is further back on this thread

 

When was the account terminated last statement was dec 07, DCA 'bought the account' july 08

 

Do you have a NOA, they have entered one into evidence but I never received one

 

Do you have all the the statements. Yes

 

 

thanks for your help:D

[caro]

This thread may help with some answers for you hunni.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html#post2186015

[hunni2006]

Thanks Caro that looks to be a great thread to read... will get to it over the weekend... Dads b'day today! going to the pub!

[diddydicky]

some creditors are using the argument (wrongly IMO ) that the creditor- by reducing the credit limit to zero- does not then need to go the DN route to claim repayment

 

personally i am sure that the reduction of the credit limit is to control FUTURE spending and has no relevance to the existing debt,

 

another cagger has lost a case to restons on this argument in the last 24 hours and this needs appealing before it becomes the norm

 

in your case you need to have the counter arguments and legal authorities to hand to rebut the proposition - the creditor is clearly (IMO) attempting to defeat the intent and purpose of the CCA in trying to circumvent the DN regulations

[caro]

Thanks Caro that looks to be a great thread to read... will get to it over the weekend... Dads b'day today! going to the pub!

 

A bit late now perhaps, but have a great time and wish your Dad a happy birthday from me. I'm sure there'll be a few raising a glass to him tonight.

[caro]

some creditors are using the argument (wrongly IMO ) that the creditor- by reducing the credit limit to zero- does not then need to go the DN route to claim repayment

 

personally i am sure that the reduction of the credit limit is to control FUTURE spending and has no relevance to the existing debt,

 

another cagger has lost a case to restons on this argument in the last 24 hours and this needs appealing before it becomes the norm

 

in your case you need to have the counter arguments and legal authorities to hand to rebut the proposition - the creditor is clearly (IMO) attempting to defeat the intent and purpose of the CCA in trying to circumvent the DN regulations

 

Looks like they specifically didn't need the DN.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/158754-court-action-bos-aa-7.html#post2870583

 

You need all the arguments you can get to make a solid case.

 

Good news in your case is the judge obviously thinks you have a case if you've been given the extra court time, but you clearly can't rest on your laurels.

[caro]

This may be a similar situation to you.

 

After accepting the CCA as valid I raised the part about the DN was defective due to the time to remedy and the that the full balance and not just the arrears were on it and the barrister piped up and pointed out that in a section of the T&C because the credit limit had been lowered to zero in Jan 09 the full amount was arrears and due and no DN was needed for the case and showed the judge a case law for it. I explained at this point that I was unaware of this and had I have had a WS from them I would of been able to research this. The judge agreed with me on this point but said he would have to go from the case law the barrister produced. However to complete he still wanted to go over the points I had raised about the DN and the timescales first of all. I explained as per my defence and the prior defence that the DN was defective because it didn't include time for service. The barrister butted in and produced CPR and showed him where this was not relevant and all they had to do was send it and give 14 days and sevice to me is the day they post it. The judge seemed unsure on this but said it was irrelvant any way due to them not needing a DN.

[vjohn82]

I've noticed this argument used more often... I will post later but it's easy to refute.

[diddydicky]

This may be a similar situation to you.

 

this is the one i was referring to- its a bad decision and totally wrong - needs to be appealed

[hunni2006]

this is starting to get scary. The last thing I want to do is lose and give myself a bigger debt to pay. The losing cases certainly seem to be stacking up at the moment, and their arguments are one step ahead of us....

I'm reading away atm, thanks for pointing me in the right direction for info.

 

Vjohn, I would be interested in any arguments that you have, but considering the amount of people who have had their threads monitored I'm not sure that it would be the best option to put them on open forum