Loopyloopy v Natwest

[loopyloopy]

Right, Im so unorganised at the moment and stressed!! having a new baby and trying to sort this mess out is a nightmare. Apologies for any spelling mistakes im trying to feed the baby and type at the same time.

 

I have began getting everything sorted and have all the correspondence in order, However am missing obviously the default notices and CCA etc.

 

When it comes to the authorities and case law section do i need to print copies of each case law etc. ie if not which parts do i need to include, Just the end judgements/summary.. I know the district judge hasnt a clue what he was going on about last time so hopefully this may make him look into things a bit more.

 

Also what happens in the eventuality that I do not receive Natwests evidence by the date the judge has set?? I still have not had any correspondence from them to attempt to settle or narrow the issues as they requested at the last hearing time to do so. Should i put this in my evidence somewhere too.

 

Im sorry If im sounding desperate or a bit of a numb skull at the moment its just im struggling with sleep deprivation and feel I need to be spoon fed even the simpliest of tasks at the momet let alone this.

 

I will put up all details of my defence and correspondence at the weekend when I can get to a scanner so I can have your opinions.

 

Thanks

[loopyloopy]

p.s Its a baby son.. Alfie, Hungry every 2 hours throughout the day and night and a massive drain of my energy at the moment lol. But am loving it in between..

[loopyloopy]

Another question someone may be able to help with. I have 266 pages worth of statements some of these showing credits debits under the title NWB personal loan.

Should I only include the statements that I am using to heavily rely on. IE They are claiming the loan was taken out in 2004 yet I have statements from 2002 showing loan repayment direct debits.

They are claiming that on the 10th Feb 2004 a loan account was opened and 34,5366 was withdrawn however when looking at the bank statement for that day only 20,150 was paid into the account and then on the 10th Febuary 2 trransfers came out of the bank account reading 'REPAY LOAN' for 4,691.09 and 10,154.99.

Also I have a credit on the 28 November 2002 for 12,400 titled NWB loan funds and then a debit the following day saying reverse entry 12,400 (my husband did not even ask for a loan then.

Going through all the statements from 2002 NW have credited my husband with a total of £55,798.97 and withdrawn £37,400.22 plus monthly instalments of 12,344. This has all occurred through either re-finacing the loan or NW errors on the account.

Do I include all statements and draw attention to the statments I want to rely on or Include a summary of my own off ingoings outgoings based on the statements for easier reading for the judge as I cannot see him wanting to look through nearly 300 pages of statements..

[loopyloopy]

Im getting there slowly hopefully by tomorrow my list will be finished and I will post it up. Its not required until the end of April so I have a bit of time altough im sure it will fly by.

Once I have the evidence list completed Im going to begin slowly looking at my witness statment. There is so much that I want to draw the judges attention too without getting him too muddled up.

Obviousy away from the CCA's and credit act etc. We want to show the judge how many mistakes NATWEST have made on the account ie crediting the account with loan funds then withdrawing them when we didnt request a loan. How the hell the amount they are claiming for was calculated. Missing payments made to them through payplan that do not show on the statments and havent been taken off the loan. etc etc.

I Just really want to sound like I know what im talking about even though at the moment I cant say I do other than obviously the basics behind why we are defending this. aarrrghhhh Im so confused. And need a huge glass of wine.

[shakespeare62]

They are claiming that on the 10th Feb 2004 a loan account was opened and 34,5366 was withdrawn however when looking at the bank statement for that day only 20,150 was paid into the account and then on the 10th Febuary 2 trransfers came out of the bank account reading 'REPAY LOAN' for 4,691.09 and 10,154.99.

 

Loopy from a quick look at the figures :-

 

20,150 + 4,691.09 + 10,154.99 add up to 34,996.08.

 

RatsNest claim that 34,536.60 was drawn down on a loan on 10th Feb.

 

It looks like 2 amounts (4,691.09 and 10,154.99) were taken out at source from the "new loan" to REPAY LOAN (i.e. your old loan). This was done internally by RatsNest i.e. It was restricted credit. The remaining 20,150 being paid into your current account as a Cash loan to spend as you wish (unrestricted credit).

 

This indicates a multipart agreement with each part under 25K.

 

I believe this gives you a strong argument that the loan was in fact Regulated by the Consumer Credit Act .

 

There is also a £500 approx discrepancy between the amount of loan they said you borrowed (£34,536.60) and the 3 statement figures which add up to £34,996.08. I believe the £500 may represent their brokers fee.

 

For the benefit of any RatsNest snoopers 'looking in' - never discount the possiblility that your original copy of the agreement could turn up in your attic. So the consequences of their 'reconstructing' an agreement are too dire to be worth consideration.

 

Basically if the loan was indeed regulated as I'm sure you will maintain it was, and RatsNest cannot produce the original containing both your signature all the prescribed terms it would be unenforceable.

[steven4064]

I think shakespeare's logic is pretty good

[AndyOrch]

Hi Loopy loopy

 

I have been asked to take a look at your thread.I will come back to you later once i have i have familiarized myself where you are up to with this lot.

 

 

Regards

 

Andy

[shakespeare62]

Also, if the brokers fee was included in the amount of credit rather than as a charge to be paid back over the duration of the loan (or in cash by you on the spot) then the agreement is unenforceable. This is because a brokers fee is a charge for credit - not credit itself. The Wilson V FCT case in the House of Lords was over a brokers fee being added to the amount of credit.

 

To quote from the above case :-

 

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

LORD NICHOLLS OF BIRKENHEAD

 

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..

 

LORD SCOTT OF FOSCOTE

 

147. “The issues have arisen out of a simple money lending transaction. Under an agreement made in January 1999 FCT lent Mrs Wilson £5000 for six months on the security of her motor car. The agreement was a 'regulated agreement' within the meaning of section 8 of the Consumer Credit Act 1974. Section 61 of the Act requires a document containing all the "prescribed terms" of a regulated agreement to be signed by the debtor. One of the prescribed terms is "the amount of the credit". FCT charged Mrs Wilson, inter alia, a £250 fee but, by agreement between them, the £250 was not paid by Mrs Wilson but instead was added to the £5000 to be repaid by her. In the document presented by FCT to Mrs Wilson for signing, and signed by her accordingly, "the amount of the credit" was stated to be £5250. But the £250 was "an item entering into the total charge for credit" (see section 9(4) of the Act) and, accordingly, was not part of "the amount of the credit" (see Schedule 6 to the 1983 Regulations: SI 1983 No 1553). In short, the document signed by Mrs Wilson did not, in the respect I have mentioned, contain the prescribed terms.

 

Keep the above in mind. Any letters fromt RatsNest confirming they were adding the brokers fee to the loan amount would be useful - as would be the agreement copy itself. On the agreement you would be able to tell what happened with the fee - Example :

 

Amount of Loan £24,663.00

Repayment 59 months x £547.10 Followed by 1 month x £547.29

Total Charge £8,646.19 comprising :-

(i) interest £8,163.19

(ii) Administration Fee of £483.00

 

Now ! if you add up the repayment total as listed (59 x 547.10) + 547.29

it equals £32,826.19

 

This amount is the same as the Amount of Loan (£24,663.00) + interest (£8,163.19).

 

i.e. the Administration Fee listed which is a charge for credit has already been included in the Amount of Loan so it is not added on again. i.e. it is NOT £24,663.00 + £8163.19 + £483. The £483 is included in the £24,663.00

 

This makes the agreement unenforceable.

 

In the above example the RatsNest Banker confirmed in writing (after pressuring the debtor to convert an overdraft to a loan) that she had added the £483 Admin fee to the principal loan amount "otherwise the loan amount would have been set at £24180 and you would have been expected to find the £483 yourself" - she was clearly not intending to lose her commission over something silly like the Consumer Credit Act 1974. This enabled the Banker to pay the loan into the Debtors current account, then deduct her commission from the amount paid in.

 

Basically the above is a worked example of something for you to look out for.

Edited March 22, 2009 by shakespeare62
corrected 'typo

[shakespeare62]

you're in good hands (and very lucky I might add) if andyorch is going to give you advice.

[shakespeare62]

Also in the post below, I've quoted snippets from a Court of Appeal case where LORD JUSTICE LLOYD ruled that a multi-part agreement containing a mis-stated precribed term was unenforceable :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-46.html#post2053534

Edited March 22, 2009 by shakespeare62

[loopyloopy]

I Just want to say a huge thank-you to everyone who has helped me so far and everyone who has offered to help me. All of your help has been so valuable to me considering I did not know the first thing about where I stood with Natwest when my husband first recieved the court claim. We probably would have just agreed with them and gained a ccj etc.

I have near enough completed my evidence list now I will post it up in a bit I have to have that to the solicitors and the court by the 23rd April so a bit of time yet.

One of the directions the judge made was that he would give 3 months to settle and all parties are to inform him by the 9th April if settled. Obviously it is not settled should I send them a letter to confirm this is the case or do they just assume its not settled.

[loopyloopy]

Hi, Andy.

Thank you for looking at my post, I would really appreciate any help or advice you can offer me.

I want to make sure Im fully prepared and know as much information so I can inform my husband easier so he will be more confident going to court as last time was a bit of a mess. (Its my husband they are claiming from)

 

Thanks

Lisa

[loopyloopy]

Here is what I have so far, I have kindly used the template as postednby shakespeare62 (Thanks). Please look and add your comments. Im new to this so havent a clue if what was relevant in the case laws in shakespeare62's list is relevant to mine although I have spent a huge amount of time reading through past posts and the links eveyone provided me with. (My family all think the black bags under my eyes are because of the baby!!)

I just so badly dont want to mess this up as there is no way we can afford to lose this case.

Another question (I know boring you all already) but when and if the case goes to a final hearing does anybody know if it is possible to get representation ie Solicitor etc to help with the actual hearing Its just as explained in my previous posts my husband has learing difficulties and there is no way he will be able to represent himself at a hearing. He struggled enough at the directions hearing and did not manage to get a word in and everything he said was just dismissed?? Ideally we cannot afford a solicitor but is it possible to get one just for one day?? Has anyone else been in this situation. Its just it is worrying my husband so much at the moment.

In the Medway County Court

Claim number: xxxxxxxxx

 

 

 

 

 

National Westminster Bank Plc – Claimant

 

 

And

 

 

Mr loopy loopy– Defendant

 

 

 

 

 

 

 

 

DISCLOSURE BY LIST - of - Mr loopyloopy– DEFENDANT

 

 

 

 

I, Mr loopyloopy, of xxxxxxxxxxxxxxxxx, being the defendant in this case, intend to rely on the following documents in court:–

 

1. Correspondances

 

 

(A) Copy of County Court Claim form issued by Claimant, dated 22nd Febuary 2008.

(B) Copy of formal request, dated 29th Febuary 2008, from Mr loopyloopy to Irwin Mitchell solicitors requesting a copy of the relevant executed Consumer Credit Agreement under S.78 Consumer Credit Act 1974, All records held relevant to the case, and Any other documents they seeked to rely on in court.

© Copy of acknowledment of claim posted 11th March 2008.

(D) Copy of letter from Irwin Mitchell solicitors to Mr loopyloopy dated 18th March 2008, confirming receipt of formal request for documentation and advising all action will be put on hold for eight weeks whilst the documentation is obtained.

(E) Copy of Mr loopy loopy’s defence. Submitted to Irwin and Mitchell solicitors and Medway county court.

(F) Copy of Claimants allocation questionaire dated 23rd June 2008.

(G) Copy of letter from National Westminster Bank Plc to Mr loopy loopy dated 25th June 2008 detailing account numbers which the claim is based upon and past payment plans agreed.

(H) Copies of Current account statements as supplied by Irwin Mitchell solicitors. (Do I need to be more specific on which pages I intend to use)

(I) Copies of Loan account statements as supplied by Irwin Mitchell solicitors

(J) Copy of letter from Irwin Mitchell solicitors to Mr loopyloopy dated 03rd December 2008 offering a full and final settlement of the claim for £20,000.

(K) Copy of Allocation Questionnaire completed by Mr loopyloopy.

(L) Copy of proposed directions from Mr loopyloopy submitted to Irwin and Mitchell solicitors and Medway county court.

(M) Copy of proposed directions from Irwin Mitchell solicitors dated 05th January 2009

2. Authorities and Case Laws

 

 

(AA) Civil Procedure Rules, Rules & Practice Directions.

(BB) Consumer Credit Act 1974

(CC) Consumer Credit Act 2006

(DD) Consumer Credit (Agreements) Regulations 1983

(EE) Consumer Credit (Agreements) (Amendment) Regulations 2004

(FF) Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

(GG) The Administration of Justice Act 1970

(HH) Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

(II) Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

(JJ) Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

(K) Money Laundering Regulations 1993

(L) Money Laundering Regulations 2003

(M) Money Laundering Regulations 2007

 

 

Statement of Truth

 

I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in this List is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose.

 

I believe the facts stated within this document to be true and the document comprises of two pages.

 

Dated this 22th day of March 2009.

 

Signed

Mr loopyloopy

[loopyloopy]

One last thing I forgot to mention, My husband recieved through the post a copy of the directions the judge agreed to. On it it now says Multi-track instead of fast track athough my husband is sure the judge agreed fast track at the directions hearing. Is this going to effect our case??

[loopyloopy]

Any advice or tips on how to get all the case laws and relevant points to my case to sink into my brain lol!! Im thinking post it notes!!! What do you do?? Its like being at school again and trying to revise for an exam..

[AndyOrch]

Ok Lisa

 

Im up to speed on your case now.Try to not let this consume your time and I will come back to you tomorrow.Dont worry.

 

Regards

 

Andy

[AndyOrch]

Ok Lisa

 

Talk about closing the stable door after the horse has bolted.

Ok I need a copy of the Claimants P.o.C verbatum and the amount being claimed less your personal details.

A copy of the Default Notice and Termination notice to your current account ( presum its NW) (if any recieved)

A copy of the Defence you submitted.

A copy of the AQ N150 submitted and The Claimants if recieved.

Any copies of orders or directions given by the DJ involved in your case(if you can scan or type verbatum less your personal details) would be helpful

 

You state that you have the statements to the account in question ( Current Account) have you finalised a penalty charge Figure?Also as this account now been frozen?

 

I will leave you with the above for now and will come back to you later on your response( I appreciate you are are very busy at the moment with your new Baby)

 

Regards

 

Andy;)

[loopyloopy]

Right Andy thanks for your help, I do not have access to a scanner so have typed what I have got. I have previously gained a lot of advice and good help from people on the forum so hopefully I have done everything correctly so far.

Claimants particulars of claim:

By an agreement entered into between the claimant and defendant, the defendant has failed to pay the sum of 27946.18 or any part thereof. The claimant has requested payment but the defendant has refused or delayed to pay. The claimant claims the sum of 27946.18 and interest under s.69 of the county courts act 1984 at a rate of 8% per annum from 21/02/2008 until judgment or sooner payment costs. The claim does not include issues under the human rights act 1998

Letter sent to Natwest and Irwin Mitchell

Dear Sir/Madam,

 

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supersedes any previous requests. The information must be furnished by the **DATE**, which gives you TEN days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Barclaycard.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

I will require this information within the next TEN days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully,

 

This is the defence I used:

In the xxxxxxxx

County Court

Claim number

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims 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 CPR part 16. In this regard I wish to draw the courts 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 proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) 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.

5. Most importantly, the claimants Particulars do not disclose any account number or any reference to the account that they are basing this claim upon. Without this basic information I suggest that no one could properly investigate a claim of this nature nor am I able to submit a fully particularised statement in response to the claim

 

6. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

7. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. (Attached marked loopyloopy1)

 

8. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

9. The claimants representatives in their reply stated that they were not in possession of the documents but have requested them from their clients, this is unhelpful and it is fair to expect that a solicitor would be in possession of the written contract among other essential documents prior to commencing litigation. since it is a requirement of the CPR that a copy of the written document / contract is served with the claim form

 

10. The claimants failure to provide the credit agreement and other documents referred to within it, along with copies of the default notice impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person

 

11. I require that the claimant produce the original document purporting to be the credit agreement in accordance with practice direction 32 para 13.1 to establish that the prescribed terms and key information is indeed contained within the agreement and not in separate documents, the only way this can be achieved is on production of the original document

 

12. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the amount of credit and 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

 

 

 

 

13. I note that these prescribed terms must also be within the Agreement and not in for example a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[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 Sch 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 s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(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."

14. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

 

15. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

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 the16. 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 particulars of claim

 

17. It is neither admitted or 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

 

18. Notwithstanding point 18, 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)

 

19. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974.section 87 makes it clear that a default notice must be served before a credit 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

 

20. 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

 

 

21. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

22. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

23. I also respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

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

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

24. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

25. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

26. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

27. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

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.

:

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

Signed ..................... (Print only)

 

Date

 

 

 

 

All credits and debits relevant from statements.

Oct 2002 NWB loan funds 6,729.88 CREDIT

Nov 2002 NWB loan funds 1,519.09 CREDIT

dEC 2002 NWB loan funds 12,400.00 CREDIT

dEC 2002 rEVERSE eNTRY 12,400.00 DEBIT

May 2003 NWB loan funds 5,000 CREDIT

July 2003 NWB loan funds 5,000 CREDIT

July 2003 To repay Loan 5,176.22 DEBIT

July 2003 NWB loan Funds 5,000 CREDIT

July 2003 loan adjustement 5,000 DEBIT

Feb 2004 NWB loan funds 20,150.00 CREDIT

Feb 2004 repay loan 4,691.09 DEBIT

Feb 2004 repay loan 10,154.99 DEBIT

 

 

Total Credit= £55,798.97

Total Debit= £37,400.22

Payments made to the loan account

oct 02 205.72

dec 02 260.40

jan 03 260.40

feb 03 260.40

mar 03 260.40

apr 03 260.40

may 03 260.40

jun 03 260.40

July 03 260.40

July 03 137.37??? (nwb personal loan two payments same day)

aug 03 260.40

Sep 03 260.40

Sep 03 105.00 ??? (nwb personal loan two payments same day)

Oct 03 260.40

Oct 03 105.00 ???? same as above

Nov 03 260.40

Nov 03 105.00 ??? same as above

Dec 03 260.40

Dec 03 105.00 ??? same as above

Jan 04 260.40

Jan 04 105.00 ??? same as above

Feb 04 260.40

Feb 04 105.00 ??? same as above

March 04 287.80

April 04 287.80

May 04 287.80

Jun 04 287.80

Jul 04 287.80

Aug 04 287.80

Aug 04 60.00 (clear loan arrears)

Sep 04 287.80

Oct o4 287.80

Oct 04 35.00 (clear loan arrears)

Nov 04 287.80 (clear loan arrears)

Nov 04 287.80

Dec 04 35.00 (clear loan arreas)

Dec 04 287.80

Jan 05 287.80

Feb 05 287.80

March 05 missing statement

April 05 missed payment

May 05 No payment taken

June 05 287.80

July 05 287.80

Aug 05 287.80

oct 05 287.80

oct 05 287.80 (2 payments made)

june 06 450.00 (taken from loan statement)

june 06 150.00

jul 06 150.00

aug 06 150.00

sep 06 150.00

oct 06 150.00

nov 06 150.00

dec 06 150.00

feb 07 150.00

march 07 200.00

April 07 100.00

july 2007 300.00

 

There are no Bank charges on the statements,

 

Letter from Irwin and Mitchell included with statements

We refer to teh above matter and enclose a copy of the claimant's allocation questionaire.

 

The claim was issued in respect of accounts numbered *** ans ***. We enclose statements for account numbered *** and will forward copies of the loan statements upon receipt.

 

A default notice was issued to you on 31 october 2005 and a Formal demand issued on 09 december 2005.

 

Your accounts were paddes to our clients credit managment services and on 15 july 2006 you entered into a payment arrangement of £150 per mont. This arrangement was subject to a 6 month reveiew. On 19 th september 2006 you telephoned our client and requested a full and final settlment figure. You were advised tat our client would accept £17000 in full and final settlement.

 

On 20 December 2006 another 6 month arrangement of £150 per month was entered into.

 

A letter was issued by green and co solicitors on 26 June 2007 as you had failed to maintain payment. On 02 July 2007 you contacted our client in response to the letter. You were informed that you had been in arrearss but as payment had now been made you were advised to maintain payments.

 

The payment plan was reset on 26 July 2007 for a further 6 monts. Our client has advised that no further payments were received.

 

Our client may be willing to accept a lump sum payment in ull and final settlement of theis claim therfore we request that you contact *** within the next 14 days to discuss settlement options.

 

Natwest directions for hearing 10th January

1. the claim is allcated to the fast track

 

2. The claim is stayed for three months for settlement and norrowing of the issues.

 

3. The parties will inform the court within 7 days if the matter is settled at the end of this period otherwise the following directions will commence;

 

4. there be exchange of evidence by standard list by 4pm on 23 april 2009

 

5. any requests for inspection of documents to be made by 4pm on 07 may 2009 with documents to be suplied by 4pm on 14 may 2009

 

6. There be simultaneous exchange of witneess statements by 4pm on 11 June 2009;

 

7. The parties shall file their listing questionaires by 4pm on 09 July 2009 to innclude an agreed case summary;

 

8 the trial to be listed for the first oped date thereafter;

 

9. 7 das prior to the trial the artes shall file and serve an agreed trial bundle

 

10. THe parties shall file and serve skeleton arguments at least 3 days prior to the trial.

Our Directions:

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a verified true copy of each of the following documents that the Claimant seeks to rely up on.

 

(a) The executed regulated consumer credit agreement made between the defendant and Claimant.

(b) the default notice

© a full and complete statement of account covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(d) Notice of Assignment

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

5 There shall be a stay of proceedings from (date) (being a date 7 weeks from the date of the making of the case management directions) until (date) (being a date 11 weeks days from the date of the making of the case management directions) to enable the parties to settle.

 

6 Standard directions for the notification of the result of mediation to the court office where after in the event of mediation failing,

 

7 Standard directions for the disclosure of documents and exchange of witness statements with no provision for expert witness evidence; date for hearing with a time estimate of 2 hour.

The directions the Judge agreed to:

the claim is allocated to the fast track

 

they claim is stayed for three months for settlement and narrowing of the issues

 

the parties will inform the courts by 9th april if settled

 

There be an exchange of evidence by standard list by 4pm on 23rd april

 

any requests for inspection or document to be made by 4pm on 07 may

2009 with documents supplied by 4pm on 14 may 2009

 

there be simultaneous exchange of witness statements by 4pm on 11 June 2009

 

CMC not phone hearing 45 minutes 23rd June.

This is as far as we have got.

[photoman]

Hi loopyloopy and friends.

 

Been reading your story with interest, after being directed here by Shakespeare62.

 

Firstly, I'd like to wish you all the best with this (and your new arrival too) !!

 

Also, I'd appreciate if you could all subscribe and perhaps contribute to my newly started thread here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190741-photoman-lloydstsb-loan.html#post2058646

 

 

Looks like I'm in a similar position to yourself, so could do with some help and advice......hopefully, I may be able to reciprocate and have some help and input to throw back too.

 

Best regards

 

Photoman

[shakespeare62]

loopy - I'm looking forward to seeing what Andy has to say on your case so far. It seems to me that if this "over 25K" issue can be thrown into doubt it would seriously undermine the Claimants position....

[AndyOrch]

Hi Lisa

 

Ok can you post details of the Claimants and your AQ verbatum.

Can you confirm you did infact recieve a DN and termination notice 31st October 2005 /9th December 2005 respectfully and again type the amounts in question the dates and the rectify dates.That it has your full name and address on said notes.

I am a bit amazed that you state there are no penalty charges on the statements are these true statements originiating to when the first part of the loan was advanced? ie Oct 2002.

Are you now in possession of the loan account statements?

 

Just to flesh the bones a little your last payment to the account was July 2007 £300 what is the background to your failing to meet the repayments without going into too much detail.

What as been paid since that date that has not been taken into account and therfore renders the PoC value invalid and to what date?

Have you retained copies of your payment plan Agreements with CMS Telford?

 

Forget the Disclosure list that you have prepared above I appreciate the time and effort put in but it realy is unsuitable for your case,never prepare your list until you recieve the Claimants list ( I will go into this as we move through and prepare a fresh one)

 

I think thats enough for now but if you can clarify the above points then we will move forward

 

Regards

 

Andy

Edited March 23, 2009 by Andyorch

[loopyloopy]

Thanks Shakespeare62. As I have said previously we were really confident with our case being without a valid credit agreement it is unenforccable however since the Judge metioned previously that credit agreements are only required for loans under 25,000 I have now lost alot of confindence in what my husband is trying to fight against. It also didnt help when he struggled to represent himself against a solicitor.

Hopefully It may get thrown out after the CMC, I am going to see If I will be allowed to go along with him. I know previously when I went to court over a dispute with my neighbour the Judge would not let me be represented by anyone other than a solicitor. My father-in-law came in with me as support and to help as I was pregnant at the time and the judge through him out of court as she felt he was getting in the way and interupting proceedings when he reminded me of a point I missed out. Im just worried they may do the same for me as my hubby may need alot of reminding....

[AndyOrch]

loopy - I'm looking forward to seeing what Andy has to say on your case so far. It seems to me that if this "over 25K" issue can be thrown into doubt it would seriously undermine the Claimants position....

 

 

Hi Shakespeare

 

Forget the 25k limit it was abolished in 2006 if memory serves me correct.

There is no agreement for for the total loan as i guesss you have already gleened its a collection of loan plus top ups which exceeds the old 25k CCA 1974 limit unless the Lisa or hubby can recall signing one (which i very much doubt)

 

Lisa cast your mind back to 2002 and try to give a breakdown of what was borrowed initially and what as been added since

 

Regards

 

Andy

[loopyloopy]

Im just digging out the AQ's and will post as soon as I find them,

With regards to your other questions.

We are not aware of receiving any default notices and If we had would not have copies of them now as we had a major house fire in March 2006.

We had major issues with out home and building insurance company some of which are still ongoing and this along with problems at work We began failing to meet payments My husband was at the time employed by his father who then passed the company down to him and his sister, Buisness wasnt going to well and he was always at the time on the promise of being paid his wages but they did not appear, (his sister dealt with the finances of the company whilst he dealt with the job schedules etc) Turned out his sister was doing him over and she later asked for him to take a loan at as the company was doing so bad about 45k I think, We couldnt afford to give the security the bank required so it was agreed that he would hand his shares in the company over with the guarantee of future employment. (His sister gave the impression that she could get the loan etc on her own and it was the only way to get the company back on track) Hubby handed over his shares she made him redundant Owing about 10,000 in wages. We have got an employment solicitor involved and they have agreed to pay him 8,000 so far but when we get it is a differant matter.

Anyway this was all happening between July 2007 and July 2008, so payments were very far and inbetween with our creditors. My Husband did go on a payment plan with payplan towards the ennd of 2007 but stopped making payments to nw when we received their claim form.

 

Im just looking at payplan online now and will post any payments they made..

[loopyloopy]

Originally my husband borrowed aprox 3,000 for a car prior to 2002, The loan was then increased on several differant occasions to cover NW overdrafts, Credit cards etc.

Im going through all the statments now to see if I can get a clearer picture of his finances at the time as I only really became involved in 2004.