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SL1210

Help with defence SL1210 v Chatham Finance/Shoosmiths

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Hi All

 

I’m after some assistance with a long standing dispute with Chatham Finance; I’ll try to be as concise as possible.

 

Chatham Finance obtained a CCJ against me 31st December 2002, after serving the default notice and court papers to a previous address. When trying to obtain a mortgage in 2005 this was brought to my attention, I sent a request for a copy of the CCA which appears illegible, I also sent them a SAR request, they sent back my cheque and sent me copy statements only. I sent further communication which including 2 Letters Before Action, they replied saying that they had conformed to my request.

 

I issued an application to the court to get the judgement set aside as they had now obtained an judgement against my house, the case was heard 13th January 2009 which they failed to attend so the judge found in my favour.

 

Chatham Finance then made an application for Summary Judgement 29th May 2009; this was to be heard 23rd June 2009. At the hearing the solicitor wasn’t 100% privy to the history, the Judge asked if I knew why we were in court and I said ‘we were here for Chatham Finance to have my earlier Judgement Set Aside’. The Judge informed me that this was not what we were here for and wanted to know if there maybe a reason why I would be contesting there application. I informed the Judge that I had only been notified by the court of the pending action, and that the original judgement obtained in 2002 was in question as I had never been served, also that the Default Notice appeared to be defective. The solicitor was asked if they or their client had served me with any documents at my current address, this was denied so the Judge said that she was unable to proceed until I had been served.

 

The judge told me that I would have to serve a notice on the court and on Shoosmiths by 21st July 2009.

 

Having read lots of information on here I have sent Shoosmiths a CPR 31.14 Request, I have used a sample defence that was found on here which is below. Is this defence fit for my needs or does it require further editing?

 

Below are the links to photobucket of all the documents from Shoosmiths.

 

Shoosmiths Particulars of Claim pictures by B19LCS - Photobucket

 

Shoosmiths Application and Witness Statement pictures by B19LCS - Photobucket

 

General Form of Judgement or Order pictures by B19LCS - Photobucket

 

Shoosmiths response to CPR 3114 Request pictures by B19LCS - Photobucket

 

 

 

IN THE BROMLEY COUNTY COURT CLAIM NUMBER XXXXXXX

 

BETWEEN

COLONIAL FINANCE (UK) Ltd T/A CHATHAM FINANCE (UK)

Claimant

And

 

SL1210

Defendant

………………………………………………..

DEFENCE

………………………………………………..

 

1. I, [sL1210] of [ FULL ADDRESS eg CONSUMER ACTION GROUP], am the defendant in this action and make the following statement as my defence to the claim made by Colonial Finance (UK) Ltd T/A Chatham Finance (UK)

 

2. Except where otherwise mentioned in this defence, the defendant neither admits nor denies any allegation made in the claimant’s Particulars of Claim and put the claimant to strict proof thereof.

 

3. 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 used by the claimant to calculate any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

4. 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 . The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.

5. It is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to in point 4 above.

 

THE REQUEST FOR DISCLOSURE

 

6. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow the defendant to prepare a defence, on [DATE] the defendant requested the disclosure of information from the claimant pursuant to the CPR [18. OR 31]

 

7. The information requested amounted to copies of

(i) the Agreement referred to in the Particulars of Claim

(ii) any default or termination notices

(iii) any notice of fair use of data as required by the Data Protection Act 1998

(iv) any other documents the Claimants seek to rely on in Court.

 

8. In addition, a list of third party agencies to which personal data has been disclosed and a summary of the nature of the information disclosed and details of transactions, including charges, fees, and method of calculation interest, alleged repayments, were also requested.

 

9. To date the claimants have failed to accede to the request under the CPR and the defendant has not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

10. The CPR clearly set out that original agreements must be made available for inspection as set out in Practice Direction 32 which states that

“13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.”

 

11. The claimants would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. I request that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement.

 

12. Without disclosure of the relevant requested documentation the defendant is not able to assess if he is indeed liable to the claimant, nor is he able to assess if the alleged agreement is properly executed.

 

THE REQUEST FOR INFORMATION UNDER S 78 CONSUMER CREDIT ACT 1974

 

13. On [DATE], the defendant requested that the claimants provide a true copy of the executed credit agreement, which they claim exists between parties, pursuant to section 78(1) of the Consumer Credit Act 1974 [the Act]. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter, proof of postage and proof of delivery are attached marked [“SL1210/1”, “SL1210/2” and “SL1210/3”.]

 

14. If a Claimant fails to provide a true copy of the executed credit agreement under S78 (1) of the Act, then S78 (6) states that he is not entitled to enforce the agreement.

 

THE REQUIREMENTS OF THE CONSUMER CREDIT ACT 1974

 

15. The claimants state in their Particulars of Claim that the claim is based upon “agreement(s) entered into between the Claimant and Defendant”. The Defendant believes that any such alleged account is regulated by the Consumer Credit Act 1974.

 

16. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These prescribed terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

17. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) ]

 

18. In addition, any such regulated agreement must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

19. The claimant has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

 

DEFAULT NOTICE

 

20. The claimants also state in their Particulars of Claim that a default notice has been served in accordance with s87 of the Act. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received.

 

21. S 87 of the Act clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

 

22. Furthermore s 88 of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice 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).

 

23. The Defendant puts the Claimant to strict proof that any default notice said document in the prescribed format was delivered to the defendant.

 

24. The defendant puts the claimants to strict proof that the default notice allegedly sent was valid.

 

25. Failure of a default notice to be accurate invalidates the default notice [Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255] which would prevent the court enforcing any alleged debt,

 

AND THE DEFENDANT

 

26. seeks an order that the claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the claimant’s default in failing to supply a true copy of the executed credit agreement as required by S78 (1) of the Consumer Credit Act 1974.

 

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

 

28. The defendant respectfully asks the permission of the court to amend this defence if or when the claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

Statement of Truth

 

I, [sL1210], believe the above statement to be true and factual.

 

 

Signed

 

 

 

Date March 2009

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You seem to be doing ok at the moment, if you've sent off the CPR31.14 and they don't respond you could possibly apply an N244 getting it struck out....


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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SL1210,

 

I don't think the defence as drafted is appropriate for your case. Shoos will argue that they have supplied both an agreement and a DN, so a defence arguing that those two documents have not been supplied will fail.

 

I can see that the Deputy DJ basically has put the claim back to square one. However, could you post up a copy of Shoos application that led to the hearing in June. It would be useful to know on what basis they applied.

 

BTW, you need to take out the identifying details from the last letter from Shoos (although they probably know who you are from the details of the case).


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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42man, thanks for taking a look, they've responded by sending another copy of the CCA, and as it says in their letter the Default Notice has been requested from Chatham.

 

Docman, point taken regarding removing the information from Shoosmiths letter. Their application that led to the hearing in June is the second photobucket link.

 

A question for you both, it seems to me that the Default Notice is defective as it doesn't give the required time for me to act, do you concur? The CCA in its current form to me is a very poor copy, am I not right in getting them to produce the original at court?

 

In response to my CPR 31.14 request is what they say regarding the Default notice true?

 

Thanks in advance guys.

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Perhaps I misunderstood, but I thought you had the original judgmet set aside. If that is the case, how come they could go for a SJ, especially with a very old deb that should be statute barred without the court judgment.

 

I'm thinking that there is a case of a defence of 'res judicare' I think coupled with an abuse of process, then a defective DN. In 2002, the time period was 7 days but with service, they actually fell short. The rest of their claim about not needing a DN is rubbish. If it is defective they can't start enforcment action, period. They could always issue a new DN, but that would raise the statute barred defence.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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A couple of other thoughts - (1) if you found out about the CCJ why did it take to 2009 to get the set aside? and (2) when granting the se aside application, what did the judge order about the original claim?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Sl1210

 

i've having good look at the docs you have posted. They have been running it close to the statute bar and appear to have it in for you, don't they. Still, you have to file a defence by Tuesday but as I posted above, I don't think the draft above is suitable.

 

Can i clarify another point, in your original post above, you said the set aside hearing was in January 2009 but her witness statement, the solicitor states (paragraph 6) that the judgment was set aside on 13 January 2008. its a small point, but can you clarify whether the set aside was this year or last year?

 

The witness statement itself is in support of the SJ application dated 29 May 2009. Was there anything else served on you from the claimant between you getting the set aside and this application?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Docman,

 

(1) if you found out about the CCJ why did it take to 2009 to get the set aside? 2005 was a bad year my wife had an ectopic pregnancy and I wasn’t up for the fight then, also I had been told that I had no chance of getting the CCJ Set Aside initially on here. So after working abroad for a while and reading what seems like thousands of threads I started to communicate with Chatham Finance.

(2) when granting the se aside application, what did the judge order about the original claim? See the second link below.

 

It appears that the court have mixed the dates up. The set aside hearing was 23rd December the documents in relation to this hearing can be found at this link Notice of Hearing 231208 :: Notice of Hearing for Set Aside picture by B19LCS - Photobucket

 

The Judgment Order can be found at this link Judgment Set Aside :: Judgement Set Aside picture by B19LCS - Photobucket

 

Chatham Finance’s application to have the above Set Aside can be found at this link along with the notice of hearing Notice of Hearing 110609 :: Notice of Hearing Application 21/04/09 picture by B19LCS - Photobucket

 

The witness statement itself is in support of the SJ application dated 29 May 2009. Was there anything else served on you from the claimant between you getting the set aside and this application? There wasn’t anything served on me from the claimant between me getting the set aside and this application, should I have received notice of them changing solicitors from R D Shelton to Shoosmiths?

 

Thanks for your time Docman.

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Many thanks Sl1210 that explains a lot. It looks like the judge has just put both parties back to the point of when the claim was first lodged in 2002

I can see why your draft defence was written in the way it was. Sorry I didn't appreciate all the steps involved. I suggest the defence needs to argue against the CCA as (a) illegible and (b) not having the prescribed terms [although it may have] and also a defective DN.

The argument put forward in their last letter can be overcome by showing that the DN issued in 2002 was itself after the agreement had expired. However, there is an argument that a DN may not be needed after the end of an agreement but I’m sure better legal bods than me will be able to comment on that aspect. I'll try to draft out something later. Appreciate you only have until Tuesday though.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Found another bundle of information from the Court, this is Shoosmiths Application Notice, Statement of Truth (which contains inaccuracies) copy of CCA and Terms & Conditions, Judgment for Claimant (in default), Final charging order, notice of set aside hearing, Judgment of set aside for non-service and Notice of Change of Solicitor.

 

http://s966.photobucket.com/albums/ae148/B19LCS/Shoosmiths%20Application%20and%20Witness%20Statement/Shoosmiths%20Application%20Notice%20240209/

 

 

Contrary to my previous post I do have a Notice informing me of the Change of Solicitor.

 

Interestingly Clare Pittman states in her witness statement that Shoosmiths were instructed to apply for a charging order in April 2007, this was actually applied for by R D Sheltons. As you will see from the Notice of Change of Solicitor, Shoosmiths officially replaced Sheltons 24/02/09. I may be clutching at straws but it is an inaccuracy none the less.

Edited by SL1210
Didn't paste the relevant link

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An update on the current status.

 

I've just received an allocation questionnaire which needs to be returned to the court 13/08/09.

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Some helpful links just in case you aren't sure.....is it a 149 or a 150 ?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what-6.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/175566-upto-eyeballs-cl-finance-2.html#post1916595

 

This also might be useful....pick out the bits that might help..

 

I 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 user should submit a defence based on the same argument but then ask for a strike out with the AQ. That way, there is no need to make an appliaction and shell out £40.

 

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.

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.


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42man, thanks for the information, before I use any of this I would like you or someone with more knowledge than me to consider my points below.

 

Shoosmiths have pointed out in their response to my CPR 31.14 request the following;

 

"In relation to the default notice we have requested a copy from our client. We would, however, point out that a Default Notice is only required to demand repayment of future installments and is not required to recover repayments that have passed. As all of the installments are now overdue it is irrelevant whether or not the Default Notice has even been served".

 

My CPR 31.14 was sent to them 13/07/09 and I gave them 7 days to respond, I still haven't received a copy of the Default Notice. The Default Notice would have been issued after the date that the agreement would have ended, what bearings if any would the Default Notice have on my case as it stands now?

 

Having viewed the CCA would you say that it's illegible?

 

Is any of what Shoosmiths have stated correct?

 

Thanks in advance.

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Sl,

 

Shoos response is their standard when dealing with older cases. However, as 42man has set out in his post, the point is that a DN is needed at the time that the claim is brought. So, was the full amount outstanding in 2001/02 when the original claim started?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Sl,

 

Shoos response is their standard when dealing with older cases. However, as 42man has set out in his post, the point is that a DN is needed at the time that the claim is brought. So, was the full amount outstanding in 2001/02 when the original claim started?

 

When the original claim started the balance outstanding was £6734.75, this was taken to court in 31st December 2002.

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42man et al.

 

I have just received a copy of Shoosmiths allocation questionnaire; I'd be grateful if any of you could cast your eye over it and comment.

 

Shoosmiths are still stating the following, “A Default Notice is only required to demand repayment of future installments and is not required to recover repayments that have passed”.

 

Shoosmiths go on to further state, “As all of the installments are now overdue it is irrelevant whether or not the Default Notice has even been served.

 

A clarification as to the above would be appreciated; the link below will take you to their allocation questionnaire documents.

 

 

Shoosmiths Allocation Questionnaire 200809 pictures by B19LCS - Photobucket

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I had thought that Shoos were trying to say that because the original loan has now expired, they didn't need a DN at this point. In fact, you took the loan agreement in 1997 and it was for 48 months. It looks like the loan had already expired when they took you to court in 2002 and therefore they were suing for all the arrears. Is that the case?

 

If so, I can see Shoos point, but it is one that falls flat on its face since the creditor did issue a DN on 27 September 2002 requiring a payment by 8 October 2002. I'm not an expert on the contents of DNs and so others may wish to comment on the contents. The creditor did provide sufficient time though for you to remedy the breach in the DN, so from that point, the DN appears valid.

 

The CCA itself is not very clear and you should state in your defence that the CCA is not legible as required by the Regulations.

 

However, have you thought about running a statute barred defence? Noramlly, a statute bar doesn't operate if a creditor has started proceedings within 6 years since the last payment or acknowledgment of the debt in writing. In this case, judgment was obtained on 31 December 2002 but no action appears to have been taken to enforce that judgment before you obtained your set aside in January 2009, which is more than six years. I'm not 100% certain, but this may open a Statute Barred defence and it may be a good idea to see if any of the legal bods had a view? Anyone?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Docman

 

The replies to your questions are in bold.

 

I had thought that Shoos were trying to say that because the original loan has now expired, they didn't need a DN at this point. In fact, you took the loan agreement in 1997 and it was for 48 months. It looks like the loan had already expired when they took you to court in 2002 and therefore they were suing for all the arrears. Is that the case? This is correct

 

If so, I can see Shoos point, but it is one that falls flat on its face since the creditor did issue a DN on 27 September 2002 requiring a payment by 8 October 2002. I'm not an expert on the contents of DNs and so others may wish to comment on the contents. The creditor did provide sufficient time though for you to remedy the breach in the DN, so from that point, the DN appears valid. This is incorrect as the Default Notice wouldn’t have given me enough days to comply with their request, from 27/09/02 to 08/10/02 is 12 days of which 2 of these days fell on the weekend.

The CCA itself is not very clear and you should state in your defence that the CCA is not legible as required by the Regulations. I agree neither the CCA or the Terms and Conditions are legible.

However, have you thought about running a statute barred defence? Noramlly, a statute bar doesn't operate if a creditor has started proceedings within 6 years since the last payment or acknowledgment of the debt in writing. In this case, judgment was obtained on 31 December 2002 but no action appears to have been taken to enforce that judgment before you obtained your set aside in January 2009, which is more than six years. I'm not 100% certain, but this may open a Statute Barred defence and it may be a good idea to see if any of the legal bods had a view? Anyone? I don’t believe that I have any chance with claiming this was Statute Barred, as they did go back to court in 2007 to obtain a final charging order.

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Docman

 

The replies to your questions are in bold.

 

I had thought that Shoos were trying to say that because the original loan has now expired, they didn't need a DN at this point. In fact, you took the loan agreement in 1997 and it was for 48 months. It looks like the loan had already expired when they took you to court in 2002 and therefore they were suing for all the arrears. Is that the case? This is correct

 

If so, I can see Shoos point, but it is one that falls flat on its face since the creditor did issue a DN on 27 September 2002 requiring a payment by 8 October 2002. I'm not an expert on the contents of DNs and so others may wish to comment on the contents. The creditor did provide sufficient time though for you to remedy the breach in the DN, so from that point, the DN appears valid. This is incorrect as the Default Notice wouldn’t have given me enough days to comply with their request, from 27/09/02 to 08/10/02 is 12 days of which 2 of these days fell on the weekend.

 

The CCA itself is not very clear and you should state in your defence that the CCA is not legible as required by the Regulations. I agree neither the CCA or the Terms and Conditions are legible.

 

However, have you thought about running a statute barred defence? Noramlly, a statute bar doesn't operate if a creditor has started proceedings within 6 years since the last payment or acknowledgment of the debt in writing. In this case, judgment was obtained on 31 December 2002 but no action appears to have been taken to enforce that judgment before you obtained your set aside in January 2009, which is more than six years. I'm not 100% certain, but this may open a Statute Barred defence and it may be a good idea to see if any of the legal bods had a view? Anyone? I don’t believe that I have any chance with claiming this was Statute Barred, as they did go back to court in 2007 to obtain a final charging order.

 

 

They only needed to give 7 clear days in 2002. The change to 14 days came in 2006.

 

I hadn't realised they had a charging order in 2007. How did they get your address then?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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They must have conducted some sort of search, strange thing is they located me a year after I purchased my current house. Why they never searched for me at my previous address is beyond me. Incidentally I also owned my previous abode too, so they could have easily found me there.

 

So I've got it wrong, the Default Notice was in the correct format and although never served on me has no bearing as to where we are today?

 

Cheers.

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Here’s an update on my ongoing battle with Chatham Finance.

 

There was a recent hearing on 20th November 2009 which the court failed to notify me of, this was following the hearing 23rd June 2009 when both parties were instructed to do the following;

 

Chatham was told in court that they would need to serve papers on me as they had failed to do so; I was asked to submit a defence. Both parties carried out what the Judge had instructed.

 

After our day in court Chatham Finance have taken it upon themselves to start issuing me with Notice of Sums in Arrears letters, this document is made up of the following charges.

 

Arrears of monthly instalments £8,310.50 (the original claim in 2002 when the obtained the CCJ was for £7,174.40)

 

Fees and other charges not paid £140.30

 

Total £8,450.80

 

They have also started to add their Solicitors Costs totalling £894.13.

 

I have received a statement of costs from Shoosmiths for £3,333.82

 

 

I have received communication from the court that the District Judge ordered two things at the hearing 20th November;

 

1. Application adjourned generally with liberty to restore

 

2. Costs in the application

 

I have written to the court informing them of me being unaware of the hearing and have asked for clarification on the two points and to advise me of the next steps to be taken.

 

It would appear to me that Chatham Finance have started to charge interest on the outstanding amount, but they haven’t detailed the rate of this interest.

 

I invite your comments or thoughts on the above.

 

Cheers [/size]

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If this was an Aplication, it is possible that it could have been 'Without Notice' ie that one side asked the judge and he has decided the issue.

 

You should ask the court office for a copy of the original application and then decide what action to take. As it is I can't think what the application could be about.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Would this be normal practice after all I was asked to submit a defence and they were asked to serve papers on me. The only thing that I can possibly think of is that they submitted an application for Summary Judgment.

 

I will wait to see what response I get from the court to my letter.

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No I don't think it will be a SJ application. Might br easier just to call the court to find out.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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SL1210 or Docman is this still ongoing, what was the outcome please.

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