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[joruby]

Hi Guys

I know its probably on here somewhere but I've got limited time to deal with this before I have to go away on business for work tomorrow!

 

I had a debt with GE Money which has been passed to Link. I've made offers based on what I'm able to pay but they've refused.

 

Background is that husbands business has gone bust taking us for quite a bit personally. His daughter has had to come and live with us because of a breakdown with her mother so my finances are stretched to the extreme as he doesn't get anything because of lack of NI contributions.

 

I do want to pay something (I see the financial position improving in around 9 months time so that other payments will no longer be made therefore I can then pay them off around 6 months after that).

 

What part of the form should I complete? (sorry my head is in a whirl!)

I really dont want a CCJ and want what is a realistic offer for me to be accepted.

 

Its really stressful for me as I have atrial fibrillation and dealing with matters on the phone sets an attack off due to stress.

 

Any advice very very gratefully received.

[drob]

Have you CCA'd link?

Have GE Money applied any unfair charges to the account?

[joruby]

thanks for the quick reply.

Yes i have but have not had any reply. I'm not sure if GE have applied any unfair charges as Ive only had the statement from Link which gives little information.

[drob]

Link must comply with your CCA request. A creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a clear dispute

 

How many days have elapsed since you requested the CCA from Link? If it has been 12+2 working days then you need to send them the following letter. http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

Edited June 27, 2009 by drob

[joruby]

for some reason I didnt date it but I did ask for a response by 7 April. I have written on around 3 occasions after this date noting that the account is in dispute but had no response other than a "you haven't paid and further action will be taken" type letter. No actual response to the content of my letters.

 

My absolute fear is a CCJ though - I've had debts and been paying them off steadily and want to try and keep my nose clean

[lilly white]

ok what are the poc

[joruby]

sorry what is a poc?

[lilly white]

The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with Rule 7.3 of the Practice Direction attached to CPR 16 which states quote :-

 

POC PARTICULARS OF CLAIM

[joruby]

ok sorry this is all new to me and I'm panicking rather!

The particulars of claim are set out as follows:

 

"The claimanta claimes the whole outstanding balance due and payable under an agreement and/or associated agreements made with the Defendant in writing and dated 8/4/03 and assigend to the Claimant. The agreement and sor associated agreements are regulated by the consumer credit act 1974. the defendent has failed to make payment as required by the agreemetn and or associated agreements and to comply with a default notice or notices served by the claimant and or asignor

and the claimant claims £xxxx

interest pursuant to section 69 county cout act 1984 at a rate of 8% eper annum from 7/X/08 to 24/X/09 of £xxx and thereafter at a daily rate of 26p to date of judgemetn or sooner payment..

 

Im not aware of any default issued and have offered to pay. Other than the statements I've not had any indication as to what rate link actually want

Edited June 29, 2009 by joruby

[lilly white]

OK PLEASE RELAX

 

THE DEFENCE STOLEN FROM SHAKESSPEAER

 

(already submitted) :-

 

 

In the XXX COUNTY COURT

Claim number XXXXXXXX

 

Between:

 

 

NASTY BANK - Claimant

 

and

 

SHAKESPEARE62 - Defendant

 

 

D E F E N C E

 

1. I, SHAKESPEARE62, am the Defendant in this action and make the following statement as my Defence to the above Claim made by NASTYBANK

 

2. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with Rule 7.3 of the Practice Direction attached to CPR 16 which states quote :-

 

“7.3 Where a claim is based upon a written agreement:

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

 

In this regard I wish to draw the Court’s attention to the following matters:

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to, or preceeding the alleged cause of action. No particulars are offered in relation to the nature of a written Agreement nor the method by which the Claimant calculated any outstanding sums due, nor any other matters necessary to substantiate the Claimant's claim.

 

(b) A copy of the original written and properly executed Regulated Credit Agreement that appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

© A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

(d) A copy of the required valid Default Notice has not been served attached to the claim form.

 

3. The Defendant avers that he entered into an agreement with NASTYBANK which was regulated by the Consumer Credit Act 1974 (The Act.). The Defendant avers that the executed agreement was entirely devoid of the prescribed terms as required by Regulation 6 and Schedule 6 of the Consumer Credit (Agreements) regulations 1983, and that consequently a Court is expressly precluded from enforcing the agreement by section 127(3) of the Consumer Credit Act 1974.

 

4. The Defendant avers that that NASTYBANK alternatively the Claimant failed to serve upon the Defendant a default notice pursuant to section 87(1) of the Act which was in the prescribed form and compliant with the provisions of section 88 of the Act.

 

5. The Defendant avers that NASTYBANK alternatively the Claimant terminated the agreement on XX July 2007 and pursuant to termination the Claimant has since made demand of the Defendant for the payment of money the subject of this claim. A copy of the Termination Notice is attached to this defence marked “Exhibit A”.

 

6. Incorporated within the sum demanded by the Claimant are sums claimed for late payment charges and like provisions. It is denied (if it be alleged) that the Claimant or NASTYBANK has incurred any such fees and charges. Alternatively It is denied (if it be alleged) that such fees and charges if incurred accurately represent sums lost by the Claimant or NASTYBANK by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is either penal and unenforceable at law, or is made via an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the Claimant.

 

7. Further and in any event, by reason of the matters set out at paragraph 4 and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 5 were steps which NASTYBANK and / or the Claimant were not entitled to take.

 

8. In the circumstances NASTYBANK alternatively the Claimant’s unlawful termination of the agreement did not give rise to an entitlement to claim any of the relief now sought by the Claimant.

 

9. The Claimant’s claim to be entitled to £6,XXX.XX or any other sum is denied.

 

 

The build up to this action

 

10. On XX August 2008 I wrote to NASTYBANK alternatively the Claimant requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974. (A copy of this correspondence is attached to this defence marked “Exhibit B”)

 

11. On XX September 2008 the Claimant supplied a copy of what appeared to be a microfiche copy of an application form, annexed to this Defence marked “Exhibit C”, which was of extremely poor quality and contained none of the prescribed terms required by the Consumer Credit Agreement Regulations 1983. Accordingly on XX November 2008 I wrote to the Claimants Solicitors setting out the issues.(A copy of this correspondence is attached to this defence marked “Exhibit D”).

 

 

12. THE CLAIMANT’S SOLICITORS (INSERT NAME) FAILED TO REPLY TO MY CORRESPONDENCE DATED XX NOVEMBER 2008, AND THE CLAIMANT HAS NOW BROUGHT THIS ACTION THEREBY GENERATING UNECESSARY COSTS AND COURT FEES.

 

The relevant Act of Parliament in this Case

 

13. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect, and the Consumer Credit Act 1974 is the relevant act in this case.

 

14. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings - quote :

 

“11 The repeal by this Act of-

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.”

 

15. Therefore, section 15 of the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. Section 127(3) of The Consumer Credit Act 1974 remains in effect for this regulated Agreement.

 

 

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

16. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

17. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

 

18. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

Credit Limit

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

Rate of interest

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

 

 

Repayments

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

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

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

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

 

19. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

20. I refer to an extract from the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 quote :

 

“[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

I agree.”

 

21. In Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003), the House of Lords explained that the Consumer Credit Act 1974 was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls from the above case – quote :

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.”

 

The Court’s Power of Enforcement

 

22. Section 127(3) Consumer Credit Act 1974 expressly precludes a Court from making an enforcement order under section 65(1) for improperly executed agreements if certain requirements have not been met. To quote from section 127(3) :-

 

“The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

23. Furthermore the Courts attention is also drawn to the authority of the House of Lords in Wilson & Ors v. Secretary of State for Trade and Industry[2003] UKHL 40 (10 July 2003)which confirms that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

24. With regards to the Authority cited in point 23, I refer to the following extracts from LORD NICHOLLS OF BIRKENHEAD in that case [2003] UKHL 40 :

 

“6... The court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable....”

 

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

 

 

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

 

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

 

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

 

“71. I turn to the statutory setting of section 127(3). The Consumer Credit Act contains many requirements about the form and contents of regulated agreements. Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4).”

 

25. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD HOPE OF CRAIGHEAD in that case [2003] UKHL 40 :

 

“100 ...Section 61(1) provides that a regulated agreement is not properly executed unless it satisfies certain requirements. It must include a statement of all the prescribed terms, which include a term stating the amount of the credit: paragraph 2 of Schedule 6 to the Consumer Credit (Agreements) Regulations 1983. Section 65(1) provides that an improperly executed agreement is enforceable against the debtor or the hirer on an order of the court only. The amount of the credit in this agreement was incorrectly stated, so Mrs Wilson became entitled to the protection of section 65(1) as soon as it was entered into. What this right meant in her case was spelled out in section 127(3), which provides:

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

26. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD SCOTT OF FOSCOTE in that case [2003] UKHL 40 :

 

“164. Section 65(1) of the 1974 Act says that an "improperly executed regulated agreement is enforceable against the debtor … on an order of the court only". It is to be noted that the agreement is not void or unlawful. It is merely unenforceable except on an order of the court. Section 127(1) of the Act says, inter alia, that in the case of an application for an enforcement order under section 65(1) the court "shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so …." Subsection (3) bars the court from making an enforcement order under section 65(1) in a case where there is no document containing all the prescribed terms that has been signed by the debtor. So, in the present case, the court was barred by section 127(3) from making an enforcement order in favour of FCT. Its discretionary power to make an enforcement order which otherwise would have been conferred by subsection (1) had been excluded by subsection (3).”

 

27. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD RODGER OF EARLSFERRY in that case [2003] UKHL 40 :

 

“175. ...Under section 61(1)(a), if the debtor has not signed a document in the prescribed form containing all the prescribed terms, the agreement is "not properly executed", with the result that it "is enforceable against the debtor or hirer on an order of the court only": section 65(1). More particularly, in terms of section 127(3), if an agreement does not contain all the prescribed terms, the court is not to make an enforcement order unless the debtor has signed a document which does contain all the prescribed terms.”

 

28. The Courts attention is also drawn to the authority of the House of Lords in Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000) which confirms that where a credit hire company's agreement failed to stipulate the prescribed terms, it was rendered , as LORD HOFFMAN put it, "irredeemably unenforceable" quote:-

 

“© Order of the court

 

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable.”

 

29. The Defendant will further refer to extracts from the following Court of Appeal case which confirmed that where a Consumer Credit Agreement does not comply with the Act regarding prescribed terms it is unenforceable : London North Securities Ltd v Tony James Meadows & Anor [2005] EWCA Civ 956 (27 July 2005). To quote from LORD JUSTICE LLOYD :-

 

“69...It follows that we dismiss the appeal because, if the insurance premium was part of the total charge for credit, as we hold, then the amount of credit under the agreement was incorrectly stated. It should have been stated as £5,000, not £5,750. It is agreed that this is a breach of the Act which cannot be overcome.”

 

“71...Accordingly, we dismiss this appeal on the sole ground that, although the amount paid to discharge the arrears was part of the credit, the amount paid by way of the insurance premium was part of the total charge for credit, not of the credit itself, and therefore the amount of credit was incorrectly stated in the credit agreement and the credit agreement is unenforceable. ”

 

30.The Defendant would also bring to the Court’s attention that the Claimant is required by The Money Laundering Regulations 1993, 2003 and 2007 to keep key documents and credit agreements for 5 years after a business relationship has ended.

 

31. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32. Furthermore, the Defendant requires clarification on the status of the original Agreement. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification that any copy document produced is authentic. Suitable document checking, copying and destruction policy notes must also be provided, backed by Audit logs to confirm how such policies were carried out, checked and maintained.

 

32. Therefore I respectfully request that the Court order the Claimant produce the original signed agreement before the Court to show the form and content of it and that it complies with the regulations referred to in this Defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

33. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked “Exhibit C”) unenforceable.

 

 

The need for a Default Notice

 

34. Notwithstanding the matters pleaded above, for a Creditor to be entitled to lawfully 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, the Creditor must must under section 87(1) Consumer Credit Act 1974 serve a default notice compliant with the provisions of section 88 of the Act. To quote from section 87(1) of the Act :-

“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.”

 

 

35. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, quote :-

 

 

“88. Contents and effect of default notice.

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2)A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

(3)....

 

 

Annotations:

Amendments (Textual)

F1 Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(1) ,

71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(2) , Sch. 2

F2 Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(2) , 71(2)

(with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1) , Sch. 1”

 

 

36. The word “must” in section 88(1) of the act quoted above, makes it clear that no variation to the prescribed form is acceptable, nor can it be dispensed with as a De Minimus issue.

 

37. I therefore 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. It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 (SI 2006/3094).

 

38. To quote from schedule 2 Para 3 of the Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as Amended, regarding the required notice period for remedy :-

 

“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) ....

 

NOTES

Amendment

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.”

 

39. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages in the sum of the amount of the Default, plus £1,000 in substantial damages caused to credit reputation as confirmed by the Court of Appeal in Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

40. 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.

 

41. It is averred that the Claimant alternatively NASTYBANK issued a Default Notice dated XX June 2007 and subsequently served it on the defendant, by ordinary post. A copy of this Default Notice is attached to this defence marked “Exhibit E”.

 

42. It is submitted that the above Default Notice failed to comply with the provisions of section 88(2) of the Act (as amended by the Consumer Credit Act 2006) and those in the associated Regulations [Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as Amended]. Fourteen days were not allowed between the Date of Service of the Default Notice and the time laid out where the alleged breach needed to be remedied. I therefore put the Claimant to strict proof as to the Date of Service of said document.

 

43. The Default Notice stated that the purported breach was to be remedied within 14 days from the date of the Default Notice. From this evidence it is quite clear that absolutely no allowance had been made for postal delivery. If the Default Notice was posted on the Date it was issued, Deemed service by 1st class post would have occurred on the second day after posting. This is also known as the Date of Service. The 14 day notice period, required by the regulations would then have commenced on the the day following the Date of Service. By allowing insufficient time for service by post, the Claimant gave the Defendant effectively only 12 days notice for remedy following Date of Service, thus breaching section 88(2) of the Act (as amended) and accompanying regulations and rendering the Default Notice invalid.

 

 

Deemed Date of Service

 

44. It should be noted that under CPR 6.26 Service of Documents, the deemed date of service by first class post occurs quote :

 

 

“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; or if not, the next business day after that day.”

 

45. I also refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on 8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting. The quoted practice direction is copied directly from the Valuation Office Agency (an agency of HMRC) website, Council Tax manual, at :-

 

FrameTitle

 

quote :-

“Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

This states:-

"7. 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 band 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.

8 March 1985

J R BICKFORD SMITH Senior Master Queen's Bench Division”

 

 

46. 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.

 

47. 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.

 

48. For the avoidance of any doubt, in the event of an alleged breach by the Debtor 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.

 

49. 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 July 2007. 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.

 

 

Conclusion

 

50. The Claimant's case should not succeed as matters stand.

 

51. Having instigated these proceedings without any legal basis for doing so, having utterly disregarded the following matters the Defendant raised in correspondence prior to their commencement of proceedings including (see “Exhibit D” attached to this defence) :-

 

The relevance of section 127(3) of the Consumer Credit Act 1974

The Authority of the House of Lords on the importance of prescribed terms in a credit agreement and the consequent effect of section 127(3) of the Act.

A Ruling from the Court of Appeal on the importance of prescribed terms within “the four corners” of a credit agreement and the consequent effect of section 127(3) of the Act.

 

The fact that the application form copy the Claimant produced is entirely devoid of the prescribed terms within “the four corners” of the agreement,as required by the Regulations (SI 1983/1553).

I believe the Claimant’s conduct and that of [iNSERT NAME] Solicitors amounts to unlawful harassment. Furthermore I believe the Claimant’s behaviour, and that of [iNSERT NAME] Solicitors is entirely vexatious and wholly unreasonable.

52. It is requested that the Court order the Claimant to produce the Original Credit Agreement mentioned in my Defence before the Court. Without production of the requested document the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

53. The Defendant requires that the Claimant provide the requested information and proofs and authenticities. The Defendant requests that the Court order that the Claimant supply the information requested.

 

54. I respectfully ask the permission of the Court to amend this Defence when

the Claimant provides full disclosure of the requested documentation.

 

55. May I please insist on this case being transferred to XXX County Court which is in the jurisdiction in which I reside, as the Claimant is a well sourced financial institution whereas I am a Litigant in Person on very limited means.

 

Statement of Truth

 

I SHAKESPEARE62 , believe the above Defence Statement to be true and factual

 

 

Signed: ___SHAKESPEARE62_________ ____________ _______

 

Date: ____XX March 2009____________________ _______

Last edited by shakespeare62; 28th March 2009 at 15:26.

 

YOU WILL FIND THIS IN LEGAL FORUM PLEASE GO THERE AND FOLLOWING

 

WHAT IS BEING SAID HERE IS THAT I COULD TAKE YOU TO COURT AND CLAIM YOU OWE ME THE MONEY HOWEVER I WOULD NEED TO HAVE ALL OD THE ABOVE

[lilly white]

PLEASE SEND THIS TO WHO EVER ISSUED THE COURT PAPERS

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[joruby]

thanks for that

[lilly white]

your most welcome

[sleepingdog]

Hi joruby ,good luck with your defence against link ,it may be advisable to blank out the sums due in post 9 as link may at times visit this site and be able to identify your case.

sleepingdog

[joruby]

thanks for the help to date

apparently ive now got another letter stating a default against the litigation fees of £x?

how does this work? what's it for? I'm getting more and more stressed now!