ccj to with welcome.now dispute

[emanevs]

upload your statements from the ****

[emanevs]

post 62?????

[stepwayne]

Pictures by stepwayne - Photobucket

 

right you'll have to bear with me on this.

all this is my wifes loan. j

 

ust looking for statements and theres two earlier agreements.(link above, hope it works).

 

this is turning worse and worse. could someone check these agreements for me. thanks.

 

at least it puts to bed why there was 4 loan numbers.

 

what a mess:confused:

[stepwayne]

bump

[emanevs]

As a pointer, I think the statements you may have do not show the correct position with your account.

 

I had two lots of statements - 1 showing unfair charges, BUT NOT DEBITED.

 

Another, showing charges and debited.

[stepwayne]

i have four lots of statements, all with different amounts. they are so so confusing. i don't know which to put on?

[stepwayne]

just to clarify,

 

i have four agreements,

obviously renewed.

 

i know its a mess in photobucket.

 

earliest is agreement one,

then agreement two.

the other two are numbered in correct order(3 pages each)

 

These two are the latest, and deemed wrong by both post and ozzy.

 

i have a question though. Does one agreement override another? which is more valid, both to me and to welcome?

[emanevs]

which ones are settled?

 

I suppose, the latest one (with the newest date) is the most relevant as I suppose any refinance would have been mopped up with that one.

 

Unless you are paying 3 different loan amounts each month, then I would say the latest one.

[stepwayne]

well yes i suppose and luckily they are the ones i'm relying on.both ozzy and post worked them out to be unenforceable.

 

a note: this is a ccj i'm trying to get setaside. i've defaulted on repayments.

 

welcome put an application for a charge order on my house.

 

this has been adjorned until the final outcome of my setaside application.

 

which is march 4. so i need to know this evidence is solid.

 

its my main arguement,

 

all the others don't hold up i don't think in front of a judge.

 

so any help is greatly appreciated.

 

i just seem to be going round in circles. thanks

[stepwayne]

this is the letter post did for me. this accompanied the setaside application.

I am making a request to the court to set aside the judgement against me for the following reasons:

 

 

• The claimant has failed to provide a modified agreement to enforce this account. The original agreement was modified on the xx july 2006
  
• The claimant relied on a new agreement signed in xx july 2006 which is a new agreement, not an agreement to modify the original.
  

I believe the judgement should also be set aside as there are number of errors with the actual judgement itself:

 

1. The Claimant in the action has failed to rebate insurance products from the first agreement.

2. The claimant in fact charged the defendant for a second piece of payment protection insurance on the second agreement.

 

Default regulations

 

The claimant failed to issue a default notice in accordance with the

 

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

 

The claimant has issued a 14 day period to rectify the default. A physical date needs to be inserted,

Not a numerical date

 

The defendant never received the default and termination notice.

 

A copy of the default and termination regulations has been attached to this application to set aside the county court judgment.

 

The defendant believes that the agreement was made up of commission payments not made aware to the borrower. This will invalidate the agreement reference the judgement Wilson v hurstanger

 

Annual percentage rate

 

The annual percentage rate on the agreement is stated at 32.2 %

The monthly interest rate has been stated at 2.25 %

 

This gives a total annual percentage rate of 27 %

Not the stated amount of 32.2 % on the agreement

 

There are requirements about the accuracy of the statement of APR. These are given in Schedule 7. The APR stated must be no more than 0.1% below the actual interest charged and no more than 1% above.

 

This will make the agreement unenforceable in law

 

I have now taken advice and understand I would have a very good defence to the Claim for the following reasons:

 

 

• The Claimant was never in possession of the correct documents which would give their case the required evidence to be successful;
  
• The account was never defaulted and terminated according to the required legislation.
  

• The annual percentage rate is misstated
  
• The account was made up of charges and unlawful commission payments so the total amount claimed has been misstated.
  

The defendant in making this application apologises to the court for the delay in this application to set aside the county court judgement but has only recently been made aware on the legality of the agreement and its enforceability.

 

Statement of truth

 

I xxx xxx

 

Believe the statements made in this application are true and correct

 

Signed xxxxx

 

Print name xxxx

 

 

 

 

 

 

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

 

 

Quote:

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

description of the agreement sufficient to identify it.

 

 

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.

 

relevant case law is this too...

 

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 petition.

·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

__________________

[emanevs]

I would perhaps refer to your evidence as 'exihibts 'a', 'b' etc.

 

Can you just clarify your figures once more, to make sure your calcs are correct (Im sure they are)

[emanevs]

oh, and how much are your damages (Kpohraror) and are you counterclaiming??

[stepwayne]

figures i have are posted earlier in thread. i will find them for you. as far as damages, i dont know? post carried me through this. he's bailed out and now i'm stuck like jdene was a week or so ago. thats why i tried to get her help, because i knew i'd be in the same situation now. i feel like i'm going to walk into the lions den butt naked!

[stepwayne]

right now the second coming has arrived in post..

 

.i'm confident i'm going to beat these.

 

missed you post.

 

please help me on my next move.

 

glad you're back.

 

got the charge order adjorned until set aside decided,

 

thanks for that.

 

step one accomplished.

.now just need the setaside granted.

 

what do i need to take?

been so nervous since you've been gone, but now you're back feel ready to take them.

[ozzywizard]

excelent news good luck m8

[stepwayne]

cheers ozzy, you've been a star while posts been away. first few days in march, the big one.

[ozzywizard]

not a prob, if you need any help let me know although my knowledge is limited on the court process. i am following your thread with great interest though

[emanevs]

the agreement may also be unenforceable because the acceptance fee was added to the total amount of credit, but NOT shown on the agreement - breach of prescribed term.

[stepwayne]

thanks emanevs, will look into this.

 

post,

left you alone since you've been back as i know you'll have loads to do.when you get a minute could you catch up on my thread. thanks.

 

set aside hearing is 4th march.

while you were away managed to get the charge order adjorned until result of setaside.

thanks for that:D.

 

thats the first hurdle overcome. although it was welcomes solicitor that asked for this.

 

she said we'll be hearing their response 3 days before hearing. seems rather late, but if this is right then so be it.

 

i've done nothing as regards preparing for court,

just trying to read up a little.

brains like a sieve,

so not much joy.

so when you get a few minutes spare would appreciate it. thanks post, and glad you're well again.

[SHELBELLE]

Subbing with interest

[emanevs]

setting aside ccj's

 

take a look:

 

Removal of CCJ's - Valid reasons to have your judgements set aside

 

and this:

 

Removal of CCJ's - Main Menu

[emanevs]

I would also add the possibility of the unenforceable credit agreement

 

This would carry a big punch to them.

[stepwayne]

thats what i'm going for emanevs. on the fact of the apr being wrong. if you can add to the letter that post did it would be appreciated, although this has already been put in as my defence/arguement.

I am making a request to the court to set aside the judgement against me for the following reasons:

 

• The claimant has failed to provide a modified agreement to enforce this account. The original agreement was modified on the xx july 2006
  
• The claimant relied on a new agreement signed in xx july 2006 which is a new agreement, not an agreement to modify the original.
  

I believe the judgement should also be set aside as there are number of errors with the actual judgement itself:

 

1. The Claimant in the action has failed to rebate insurance products from the first agreement.

2. The claimant in fact charged the defendant for a second piece of payment protection insurance on the second agreement.

 

Default regulations

 

The claimant failed to issue a default notice in accordance with the

 

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

 

The claimant has issued a 14 day period to rectify the default. A physical date needs to be inserted,

Not a numerical date

 

The defendant never received the default and termination notice.

 

A copy of the default and termination regulations has been attached to this application to set aside the county court judgment.

 

The defendant believes that the agreement was made up of commission payments not made aware to the borrower. This will invalidate the agreement reference the judgement Wilson v hurstanger

 

Annual percentage rate

 

The annual percentage rate on the agreement is stated at 32.2 %

The monthly interest rate has been stated at 2.25 %

 

This gives a total annual percentage rate of 27 %

Not the stated amount of 32.2 % on the agreement

 

There are requirements about the accuracy of the statement of APR. These are given in Schedule 7. The APR stated must be no more than 0.1% below the actual interest charged and no more than 1% above.

 

This will make the agreement unenforceable in law

 

I have now taken advice and understand I would have a very good defence to the Claim for the following reasons:

 

• The Claimant was never in possession of the correct documents which would give their case the required evidence to be successful;
  
• The account was never defaulted and terminated according to the required legislation.
  

• The annual percentage rate is misstated
  
• The account was made up of charges and unlawful commission payments so the total amount claimed has been misstated.
  

The defendant in making this application apologises to the court for the delay in this application to set aside the county court judgement but has only recently been made aware on the legality of the agreement and its enforceability.

 

Statement of truth

 

I xxx xxx

 

Believe the statements made in this application are true and correct

 

Signed xxxxx

 

Print name xxxx

 

 

 

 

 

 

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

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

description of the agreement sufficient to identify it.

 

 

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.

 

relevant case law is this too...

 

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 petition.

·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

__________________

 

 

 

 

wait till monday

 

this is a very rough draft and needs a little bit of work but the template is in place

 

people jump in and recomend to deleate or add to this set asside application

day

[stepwayne]

one quick thing, the judge said the timescale in making this setaside was a major obstacle. any ideas how i best put this forward

[stepwayne]

post heres what happened at the final charge order hearing:

 

got back from court.

first objective achieved.

charge order hearing adjourned until outcome of set aside application.:grin:

 

Although there is a few points to raise.

 

Although we went in there with that objection it was the solicitor acting on behalf of welcome/irwin mitchell, (think she was a local representative )

that actually said she was going to ask it too.

 

We rang the sols on posts advice on thursday asking if they would agree to this.

They said no!

They also said no-one would be attending and sent in a letter confirming this.(someone did attend)

They are playing mind games!

 

She also told us of a few things on the setaside application that we could not rely on. I will go into that when i've calmed down.

 

The judge when we saw him warned us of the timescale.

He said it would be one hurdle to overcome as to why it took us a year to put in the set aside application.

 

He also said, which i understand because we are.

"you have to be careful, you need to know what you're talking about...you are a little fish in a big pond swimming with sharks."

 

The solicitor also warned that if the set aside application is granted, that welcome would fight it, and this is where it becomes expensive.i.e costs.

 

She also admitted that the apr rate being wrong on agreement is a very good defence.

 

Could someone please recheck this as i see it being the major player here.

 

Anyway, thanks to all who've got me this far, especially post.