Lowell/BW Legal V Myself help have now issued a claim

[bh2362]

Hi I have recieved a County Court Claim from Restons Solicitors Via the Northampton county Court.

I have been paying them back a debt originally from HFC Bank which was from a Sofa from DFS.

I owed about 1200 with HFC, and now Restons have added on another 250 and some court and solicitor charges.

 

I fell behind with payments from HFC sent them a letter and asked if I could pay reduced payments i never had a reply from them so i continued to pay them token payments of £12 each month, they then ended up passing it over to Reston's.

 

Restons took control and added on there collection charges and agreed for me to pay the £12 eack month I had been paying this regularly but lately missed i think two payments due to not having the money to pay them.

 

I recieved the Court claim on Saturday, i have been reading up on another post so I think now I have to send the request for information, am i right. I would be grateful if anyone has had any experience with Restons who can help me through this.

 

Thanks in Advance

 

Ben

[bh2362]

This is a copy of the letter i sent them.

 

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. The information must be furnished by the 24th July 2009, 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 Beneficial Bank.

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,

Signed.

[supasnooper]

You've done well so far.

 

Ome more letter for you to write - to Restons telling them to remove their collection charge.

 

They are not allowed to add a collection charge as it is against the OFT's guidelines on debt collection. (http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf para 2.7 )

 

If they fail to remove it - report them to OFT and Trading Standards.

[bh2362]

Thanks supasnooper, Shall I prepare a letter to them today I could not find anything suitable in the Letters you suggested, Shall I put something Like Please can you remove the collection charge you have placed on account as this is illegal?

Thanks for helping me out here, I have read from past post that Restons have been quite forceful.

 

Ben

[supasnooper]

Inform Restons that you note that a collection charge has been added and point them to the reference point of the OFT debt collection guidelines.

 

Politely ask them to remove it or you will report them to the Office of Fair Trading and Trading Standards.

[SB100]

Have a look at my thread here ben http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant.html It might help you

[bh2362]

hi SB100,

 

Thanks alot mate for the thread i started reading it earlier on today, i think i started in the middle of it. Thanks for the advice seems like a similar case though restons have added on the collection charge. Stick with this thread i intend to put up a fight.

I sent documents yesterday by special delivery, so I am waiting now.

How long do they have to reply in, and what happens if they dont reply.

 

cheers again

 

BH

[42man]

Hi BH...May I ask what the particulars of the claim are ? (but don't be specific with the numbers) Stick to the timescales of complying with acknowledging the claim and submitting the defence.....

[bh2362]

Hi 42Man,

 

Thanks for your help on this here are the particulars of the claim:-

 

-----------------------------------------------------------------------

The Claimant claims payment of the overdue balance due from the defendant under a contract dated on or about 18/01/2007 in the sum of £1400.34

 

particulars:

 

11/12/2008 Default Balance £1241.40

11/12/2008 CollectionCharge £206.94

02/04/2009 Post Refrl Cr -£48-00

 

Total £1400.34

 

 

this is all I have so far from them.

 

Thanks

BH

[bh2362]

Hi 42Man,

 

Thanks for your help on this here are the particulars of the claim:-

 

-----------------------------------------------------------------------

The Claimant claims payment of the overdue balance due from the defendant under a contract dated on or about 18/01/2007 in the sum of £1400.34

 

particulars:

 

11/12/2008 Default Balance £1241.40

11/12/2008 CollectionCharge £206.94

02/04/2009 Post Refrl Cr -£48-00

 

Total £1400.34

 

 

this is all I have so far from them.

 

Thanks

BH

 

sorry forgot to add the solicitors and Court Fee.

 

Claim summary Amount Amount claimed: £ 1,400.34 Court fee: £ 65.00 Solicitors costs: £ 80.00 Total amount: £ 1,545.34 Issue date: 10 Jul 2009

[42man]

Does the claim form mention just Restons or is the claimant DFS... ?

[bh2362]

hi 42Man,

 

the Claimant is:

 

HFC Bank Limited

Litigation Department

Camden House West

The Parade

Birmingham

B1 3PY

 

And restons Solicitors as the address for sending payments or documents.

 

Something intersting about it is the date the have said does not make sence, when we went in and ordered Our Sofa We did this in December around the 1st week which was then 2006.

 

The paperwork states under a contract dated on or about 18/01/07

surely this contract I would have had to have signed on this date, as i dont know where it has come from.

 

Thanks

BH:confused:

[bh2362]

Hi All I have written a letter today, kept short and simple asking they remove the collection charge.

 

 

 

I am writing to you to ask that you remove the collection charge you have place on this account, I refer to the OFT guidance on Debt Collection paragraph 2.10 (Charging for debt collection).

I would be grateful if you can remove this and amend your claim particulars forthwith.

In failure to do so I will have no other option but to report this matter to the Office of fair trading, and trading Standards.

I look forward to hearing from you.

 

 

Yours faithfully

 

[bh2362]

 

 

 

[robcag]

Hi Ben

 

As well as waiting for the agreement to be picked apart by someone knowledgeable, have you received a Default Notice?

 

HFC have been well known in the past for issuing defective DNs and thereby losing their claims, although I haven't seen any more recent ones so they may have corrected this.

 

It would be useful if you have the original then post it up here after removing your personal details but leave the dates on. The original would be preferable as there have been several cases on here where the original has been defective but later HFC copies have mysteriously had different dates on them to make them appear compliant.

 

Cheers and good luck

Rob

Edited July 16, 2009 by robcag
grammar

[supasnooper]

Hi bh, just a few tweaks to what you composed.

Dear Sir

I am writing to you to request the removal the collection charge you have placed on this claim.

I refer you to the OFT guidance on Debt Collection paragraph 2.10 (Charging for debt collection) and note that the specified collection charge is against the guidelines published

I would be obliged if you will remove this charge and amend your claim particulars forthwith.

In failure to do so, I will have no other option but to report this matter to the Office of Fair Trading, and Trading Standards.

I look forward to your compliance and due diligence in dealing with my request.

 

Yours faithfully

Your Name

Print, do NOT sign.

[bh2362]

Hi Rob.

 

no I dont remember recieving one from them thats the problem with the whole matter I have requested information from them waiting for a reply. Another thing

 

If you look at the time i signed the contract it was November 25th 2006 the particulars in the claim state differently.

 

The Claimant claims payment of the overdue balance due from the defendant under a contract dated on or about 18/01/2007 in the sum of £1400.34

 

 

Thanks for the reply Rob.

 

Ben

[bh2362]

Thanks Supa,

 

will get that off to them today Recorded delivery.

 

Will let you know there responce.

 

BH

[bh2362]

Hi Ben

 

As well as waiting for the agreement to be picked apart by someone knowledgeable, have you received a Default Notice?

 

HFC have been well known in the past for issuing defective DNs and thereby losing their claims, although I haven't seen any more recent ones so they may have corrected this.

 

It would be useful if you have the original then post it up here after removing your personal details but leave the dates on. The original would be preferable as there have been several cases on here where the original has been defective but later HFC copies have mysteriously had different dates on them to make them appear compliant.

 

Cheers and good luck

Rob

 

hi Rob here is the default notice.

 

[SB100]

They're not getting any better. Even if that had been delivered by hand they still haven't given 14 clear days. There is also a technical issue withthe wording and emphasis.

 

If they have got a correct and enforceable CCA, then all they'll recover from you is the arrears at best- £158.25.

 

If they were to issue proceedings, maybe you could counterclaim unlawful recision of contract?

 

I'm sure other CAG'ers with more specific knowledge will be along to comment shortly

[42man]

Have you still got the termination notice ?

 

You'll find this interesting....

 

would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

Here is a request for strike out based on the above

Quote:

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

[robcag]

Hi Ben

 

I agree with what SB100 says about the dates on the DN, looks like you landed a good 'un , invalid DN which amounts to unlawful termination of the agreement - presuming you did not rectify the default before the date shown.

 

That is exactly what won my case for me, thanks to pt2537 noticing the same defect, see post #12 onwards here;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html#post1298696

 

There are now many other threads on CAG regarding defective DNs and the problems that causes nasty creditors.

 

See also;

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

and the resultant discussion thread mentioned in that thread.

 

Cheers

Rob

Edited July 16, 2009 by robcag
added smiley

[SB100]

I'm in a similar situation here http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant.html

 

Although I've now submitted my amended defence, should I act as guinea pig, test the theory and go for a strike out under CPR 3.4(2)(a)?

 

If you're happy to help me do it, and help me if it goes pear shaped, then I'm up for it

[bh2362]

Have you still got the termination notice ?

 

You'll find this interesting....

 

would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Here is a request for strike out based on the above

Quote:

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

 

 

 

 

Thanks 42Man,

 

What is a termination notice? after i recieved the default in the space if a month or two this was passed to Restons Who then handled the Debt collection process.

 

What do I have to do next now? I have sent a letter to Restons asking

them to remove there collection Charge.

 

I have acknowledged Service and sent the request for information to HFC see my letter at begining of post.

 

Just waiting to here back from them now!!!

 

I am a virgin on this so you will have to hold my hand!!!

 

Thanks again.

[bh2362]

Thanks 42Man,

 

What is a termination notice? after i recieved the default in the space if a month or two this was passed to Restons Who then handled the Debt collection process.

 

What do I have to do next now? I have sent a letter to Restons asking

them to remove there collection Charge.

 

I have acknowledged Service and sent the request for information to HFC see my letter at begining of post.

 

Just waiting to here back from them now!!!

 

I am a virgin on this so you will have to hold my hand!!!

 

Thanks again.