Sygma Bank UK vs me

[stleonards]

Closed for counter service when I got there and the telephone isn't being answered at the moment (nearly closing time)

 

I will go again after work tomorrow.

[citizenB]

WORK IN PROGRESS

 

Here you go. it will need a bit of work, but the main points are there.

 

I am just going to look for all the relevant information regarding Default Notices. You will need to include the fact that they have issued 2 templated DNs and recalled one by saying it was issued with the wrong company name.

 

I think they might have terminated the account or started these proceedings before they gave you one issued in the name of the correct company in which case that might also cause a problem for them. Well I am hoping so anyway.

 

BRB.

 

 

In the XXXXXXX County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxx - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

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

 

1. This defence is submitted in response to the General Order made by District Judge XXX on 30th September 2009.

 

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 claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

a) 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.

 

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

 

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Tuesday 6th October 2009 ( click on the link and print out a copy of this )

 

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.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

Build up to this Action

 

 

 

9. In the build up to this action, on XX December 2008 I wrote to xxxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . No such document was sent to me.

 

The Request for Disclosure

 

 

10. On receipt of the Claim form, on 2nd July 2009 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case, from the claimant.

 

 

 

11.The (Is the form headed Application/Agreement) form supplied in response to that request is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

11. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit ??), which is vital to this case from the claimant. The information requested was ???? (What information did you request ? )

 

12. The claimant has replied without complying with my request (letter attached marked Exhibit ??) (points 11 and 12 might need to be moved/removed and renumberd)

 

13. 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 which 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 credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement 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

 

 

 

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13. 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. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

16. 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."

 

17. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

18. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

18. It is difficult to tell if the document provided by the Claimant contains the prescribed terms as it is illegible. The Claimant is therefore put to strict proof that such a compliant document exists

 

 

19. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

 

20. In a letter dated 15th July 2009. The Claimant's solicitor sent what they claim to be, a Template of a Default Notice they say was sent to me on 11th December 2008. The Default Notice bears the letter heading of a company called Creation Financial Services of whom, I have never heard. I deny having received a copy of this Notice.

 

 

21. In a further letter dated 2nd September 2009, the Claimant's Solicitor sent a further Template Default Notice advising that from a review of their paperwork they notice the Template Default Notice previously provided on Creation Financial Services headed paper was incorrect and they were enclosing one on Sygma's headed paper.

 

 

a) They also enclosed a screen print from their client's computer record system claiming it indicates the date of issue of the Default Notice.

 

 

b) There is a date in the right hand corner of the screen print which shows the date of the screen print as 26th August 2009

 

 

c) There are two entries which have Default notice allocated and they are both dated 09/04/2009

 

 

d) This contradicts the earlier statement of a Default Notice being issued on 11th December 2008

 

 

e) Both Template Default notices are missing a statutory notice which is:

 

Consumer Credit (Enforcement, Default and termination notices) regs 1983.

 

A statement in the following form--

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one."

 

 

20. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

 

22. Notwithstanding point 20, I put the claimant to strict proof that any default notice sent to me was valid and allowed the statutory 14 clear days to recitify the breach. 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)

 

 

23. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

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

25. 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.

26. . 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.

27. . 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.

28 . 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.

 

 

29 The Claimant is claiming post judgement interest, as per the POCS "continuing until judgment or payment"

 

This is from the CCA2006 amendments to the CCA1974 Act...

 

 

 

130A Interest payable on judgment debts etc.

(1) If the creditor or owner under a regulated agreement wants to be able

to recover from the debtor or hirer post-judgment interest in connection

with a sum that is required to be paid under a judgment given in

relation to the agreement (the ‘judgment sum’), he—

(a) after the giving of that judgment, shall give the debtor or hirer

a notice under this section (the ‘first required notice’); and

(b) after the giving of the first required notice, shall give the debtor

or hirer further notices under this section at intervals of not

more than six months.

(2) The debtor or hirer shall have no liability to pay post-judgment interest

in connection with the judgment sum to the extent that the interest is

calculated by reference to a period occurring before the day on which

he is given the first required notice.

(3) If the creditor or owner fails to give the debtor or hirer a notice under

this section within the period of six months beginning with the day

after the day on which such a notice was last given to the debtor or

hirer, the debtor or hirer shall have no liability to pay post-judgment

interest in connection with the judgment sum to the extent that the

interest is calculated by reference to the whole or to a part of the period

which—

Consumer Credit Act 2006 (c. 14) 13

(a) begins immediately after the end of that period of six months;

and

(b) ends at the end of the day on which the notice is given to the

debtor or hirer.

(4) The debtor or hirer shall have no liability to pay any sum in connection

with the preparation or the giving to him of a notice under this section.

(5) A notice under this section may be incorporated in a statement or other

notice which the creditor or owner gives the debtor or hirer in relation

to the agreement by virtue of another provision of this Act.

(6) Regulations may make provision about the form and content of notices

under this section.

(7) This section does not apply in relation to post-judgment interest which

is required to be paid by virtue of any of the following—

(a) section 4 of the Administration of Justice (Scotland) Act 1972;

(b) Article 127 of the Judgments Enforcement (Northern Ireland)

Order 1981;

© section 74 of the County Courts Act 1984.

( This section does not apply in relation to a non-commercial agreement

or to a small agreement.

(9) In this section ‘post-judgment interest’ means interest to the extent

calculated by reference to a period occurring after the giving of the

judgment under which the judgment sum is required to be paid.”

 

 

Conclusion

 

30. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a legible copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

31. 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.

 

 

 

32. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

33. 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.

 

34. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

 

Edited October 7, 2009 by citizenB
editing removing font format commands

[citizenB]

My turn to cook supper. Back later

[the_shadow]

My turn to cook supper. Back later

 

OOoo what was for supper ;-)

 

For point 24, from my snippets library...

 

It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

S.

[stleonards]

It looks like you will have to file a fully argued defence stating

1. CCA supplied is not compliant nor legible

2. DN is defective in that it

(a) doesn't contain all terms and

© have any dates as required for service

3. IF transferred to Sygma,

(a) DN identify creditor sufficiently and

(b) no notice of assignment.

 

Thanks for the input DM I forgot to thank you in the confusion yesterday

[stleonards]

OOoo what was for supper ;-)

 

For point 24, from my snippets library...

 

S.

 

Thanks CB and S

 

I couldn't get to the Court today due to work, but I did ring them and the answer I got was that the Judge had made his ruling and it was up to me to comply with it, or not....

 

Soooo.... This defence is looking good to me :)

[AndyOrch]

Closed for counter service when I got there and the telephone isn't being answered at the moment (nearly closing time)

 

I will go again after work tomorrow.

 

 

Any idea what happened to your directions SL?

 

Andy

[stleonards]

I don't know Andy?? not always easy to get sense on the phone, I did explain the situation and the clerk left me on hold for fifteen minutes and came back with that answer, I guess my Judge is not a fan of LIP's

[citizenB]

Any idea what happened to your directions SL?

 

Andy

 

It doesnt make sense does it ?

[citizenB]

OOoo what was for supper ;-)

 

For point 24, from my snippets library...

 

 

 

S.

 

Pizza and jacket potato.. better safe than sorry.. I am not a very good cook

 

Thanks for the snippet, shadow

 

All contributions to St leonards defence welcome:D.. post 71

 

Defence - A work in progress

 

If only to tell us we are on the right track and to proof read. Thank you.

[citizenB]

OK TO PRINT AND AMEND TO SUIT

 

 

In the XXXXXXX County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxx - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

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

 

1. This defence is submitted in response to the General Order made by District Judge XXX on 30th September 2009.

 

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 claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

a) 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.

 

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

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Tuesday 6th October 2009 ( click on the link and print out a copy of this )

 

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.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

Build up to this Action

 

 

9. In the build up to this action, on XX December 2008 I wrote to xxxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . No such document was sent to me.

 

The Request for Disclosure

 

10. On receipt of the Claim form, on 2nd July 2009 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case, from the claimant.

 

 

11.The (Is the form headed Application/Agreement) form supplied in response to that request is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

12. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit ??), which is vital to this case from the claimant. The information requested was ???? (What information did you request ? )

 

13. The claimant has replied without complying with my request (letter attached marked Exhibit ??) (points 11 and 12 might need to be moved/removed and renumberd)

 

14. 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 which 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 credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement 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

 

 

15. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13. 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

 

 

16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

17. 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."

 

18. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

19. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

20. It is difficult to tell if the document provided by the Claimant contains the prescribed terms as it is illegible. The Claimant is therefore put to strict proof that such a compliant document exists

 

 

21. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

 

22. In a letter dated 15th July 2009. The Claimant's solicitor sent what they claim to be, a Template of a Default Notice they say was sent to me on 11th December 2008. The Default Notice bears the letter heading of a company called Creation Financial Services of whom, I have never heard. I deny having received a copy of this Notice.

 

 

23. In a further letter dated 2nd September 2009, the Claimant's Solicitor sent a further Template Default Notice advising that from a review of their paperwork they notice the Template Default Notice previously provided on Creation Financial Services headed paper was incorrect and they were enclosing one on Sygma's headed paper.

 

 

a) They also enclosed a screen print from their client's computer record system claiming it indicates the date of issue of the Default Notice.

 

 

b) There is a date in the right hand corner of the screen print which shows the date of the screen print as 26th August 2009

 

 

c) There are two entries which have Default notice allocated and they are both dated 09/04/2009

 

 

d) This contradicts the earlier statement of a Default Notice being issued on 11th December 2008

 

 

e) Both Template Default notices are missing a statutory notice which is:

 

Consumer Credit (Enforcement, Default and termination notices) regs 1983.

 

A statement in the following form--

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one."

 

 

24. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

 

25. Notwithstanding point 20, I put the claimant to strict proof that any default notice sent to me was valid and allowed the statutory 14 clear days to recitify the breach. 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)

 

 

26. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

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

 

28. 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.

 

 

29. . 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…

 

 

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

 

 

31. 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.

 

 

32 . 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.

 

 

 

33 .The Claimant is claiming post judgement interest, as per the POCS "continuing until judgment or payment"

 

This is from the CCA2006 amendments to the CCA1974 Act...

 

 

 

 

130A Interest payable on judgment debts etc.

(1) If the creditor or owner under a regulated agreement wants to be able

to recover from the debtor or hirer post-judgment interest in connection

with a sum that is required to be paid under a judgment given in

relation to the agreement (the ‘judgment sum’), he—

(a) after the giving of that judgment, shall give the debtor or hirer

a notice under this section (the ‘first required notice’); and

(b) after the giving of the first required notice, shall give the debtor

or hirer further notices under this section at intervals of not

more than six months.

(2) The debtor or hirer shall have no liability to pay post-judgment interest

in connection with the judgment sum to the extent that the interest is

calculated by reference to a period occurring before the day on which

he is given the first required notice.

(3) If the creditor or owner fails to give the debtor or hirer a notice under

this section within the period of six months beginning with the day

after the day on which such a notice was last given to the debtor or

hirer, the debtor or hirer shall have no liability to pay post-judgment

interest in connection with the judgment sum to the extent that the

interest is calculated by reference to the whole or to a part of the period

which—

Consumer Credit Act 2006 (c. 14) 13

(a) begins immediately after the end of that period of six months;

and

(b) ends at the end of the day on which the notice is given to the

debtor or hirer.

(4) The debtor or hirer shall have no liability to pay any sum in connection

with the preparation or the giving to him of a notice under this section.

(5) A notice under this section may be incorporated in a statement or other

notice which the creditor or owner gives the debtor or hirer in relation

to the agreement by virtue of another provision of this Act.

(6) Regulations may make provision about the form and content of notices

under this section.

(7) This section does not apply in relation to post-judgment interest which

is required to be paid by virtue of any of the following—

(a) section 4 of the Administration of Justice (Scotland) Act 1972;

(b) Article 127 of the Judgments Enforcement (Northern Ireland)

Order 1981;

© section 74 of the County Courts Act 1984.

( This section does not apply in relation to a non-commercial agreement

or to a small agreement.

(9) In this section ‘post-judgment interest’ means interest to the extent

calculated by reference to a period occurring after the giving of the

judgment under which the judgment sum is required to be paid.”

 

Conclusion

 

34. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a legible copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

35. 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.

 

 

36. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

37. 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.

 

38. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

Edited October 7, 2009 by citizenB

[citizenB]

OOoo what was for supper ;-)

 

For point 24, from my snippets library...

 

It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

S.

 

 

Shadow, this is now point 33:eek: . Does this need to be added as well. I dont see the Claimant has asked for the s69 interest. Are these two the same.

 

Help.........................

[AndyOrch]

Shadow, this is now point 33:eek: . Does this need to be added as well. I dont see the Claimant has asked for the s69 interest. Are these two the same.

 

Help.........................

 

Not if they havent stated it.

 

 

Andy

[the_shadow]

Looks good to me, reads fine except referenced numbers but I see you've coloured them in red for correcting/amending still

 

Sterling work as ever CitB

 

S.

[the_shadow]

Shadow, this is now point 33:eek: . Does this need to be added as well. I dont see the Claimant has asked for the s69 interest. Are these two the same.

 

Help.........................

 

Apologies, just had a look at the POC's again, your correct, theyre not claiming stat interest, theyre claiming contractual interest:eek:

 

S.

[AndyOrch]

Apologies, just had a look at the POC's again, your correct, theyre not claiming stat interest, theyre claiming contractual interest:eek:

 

S.

 

 

If Contractual interest is stated in the T&C of the agreement then they are well within their rights to apply this to the POC, whether a DJ would allow it is another thing!!!!

 

 

Andy

[the_shadow]

If Contractual interest is stated in the T&C of the agreement then they are well within their rights to apply this to the POC, whether a DJ would allow it is another thing!!!!

 

 

Andy

 

Out of curiosity Andy would that be the original t&c supplied at inset or could this be on an amended t&c sent during the lifetime of the account and still be valid?

 

S.

[AndyOrch]

Out of curiosity Andy would that be the original t&c supplied at inset or could this be on an amended t&c sent during the lifetime of the account and still be valid?

 

S.

 

Initial T&Cs Shadow

 

 

Regards

 

Andy

[the_shadow]

Initial T&Cs Shadow

 

 

Regards

 

Andy

 

Cheers Andy

 

S.

[citizenB]

Thanks andy and shadow.

 

St leonards, you are now going to have to have a good read and amend where necessary dates for requests you have made.(I have tried to use those on the paperwork you have posted)

 

If you make amendments.. post them up so we can see please.

[stleonards]

Thanks so much CB Andy Shadow

 

Will get to work on it today and post up when done. I am off to the Court at midday as well to see if I can get a better answer about what happened to my Directions face to face.

 

Thanks again everyone

[stleonards]

Hi again,

 

After catastrophic computer failure over the last five days involving three re-installations of Windows and eventually a new laptop hard drive I have managed to get back here and complete this defence ready for the Court tomorrow :) phew!

 

I will post the defence up when I have removed the personal details from it, but my nerves are too jangled to do so at the moment

 

Thanks for all the help.

[citizenB]

I imagine you are feeling rather frazzled at the moment. Look forward to the masterpiece:D

[stleonards]

I imagine you are feeling rather frazzled at the moment. Look forward to the masterpiece:D

 

:D

 

I have another question for all you knowledgeable people Do I need to send a copy of this defence to the claimants as a courtesy as well? I will if needs be but I must admit it irritates me to spend money on recorded and special delivery when they just reply by second class post, if and when they can be bothered.

 

Thanks again.

[Docman]

StL,

 

I fully understand but the short answer is yes, you have to serve a copy of the claimants solicitor. The CPR 15.6 states

 

Service of copy of defence

 

15.6

 

A copy of the defence must be served on every other party.

(Part 16 sets out what a defence must contain)

 

I know it is a bit extra but I also advise sending all documents to solicitors by recorded delivery and printing off the receipt of delivery. Its amazing how many solicitors never receive statements etc from defendants when it does not suit the claimant or their solicitor.