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panty54

Eversheds/Nationwide issue court docs

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3284 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

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Could someone please advise with this situation on behalf of OH

 

Nov 08 CCA request to Nationwide response was application form please see upload

Dec 08 account in dispute letter (12+2) using model from this site

Jan 09 further request for true copy of agreement from Nationwide

Jan 09 Nationwide send same application form

Jan 09 Nationwide send DN see upload -dodgy

Feb 09 SAR using model from this site

Feb 09 Another DN see upload - dodgy

Feb 09 pre-debt collection notice from Nationwide with intention to refer to DCA KPR

March 09 Nationwide send yet another application form - same as previously sent - with T&Cs mysteriously appearing see uploads

May 09 passed to Eversheds by Nationwide with advice from Eversheds that agreement has been terminated

May 09 Eversheds offer reduced settlement but declined by OH as account in dispute

June 09 Eversheds send copy of same application form plus 2 other agreements for 2 other individuals - ICO to be informed

July 09 CC summons from Eversheds - Cardiff court - to be defended.

 

Could somebody please have a look at the docs as we now need to start preparing a POC and defence I believe. Time is not on our side as we only have 2 weeks to prepare - we have to go abroad to visit rels middle of Aug for 2 weeks. No SAR has ever been fulfilled and all in all same application form has been sent on 4 separate ocassions with T&Cs turning up at the third point. Dodgy DNs isued and details of other individuals disclosed to us in error. Look forward to your comments:)

CCE00000.pdf

CCE00001.pdf

CCE00002.pdf

CCE00003.pdf

CCE00004.pdf

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Last page of T&Cs couldn't upload on last post as I had used my quota!

CCE00005.pdf

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Could anybody please have a look at this one for me and offer some advice as time is of the essence. Do we now issue a CPR 31.14? I would be grateful for some expert advice - I have been following lots of forums but just confirmation to point us in the right direction would be gratefully received.

 

Thanks in advance

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If it was me in your shoes I would issue a CPR31.14 in line with their Particulars Of Claim....(you can find this here but read it very carefully) - http://www.consumeractiongroup.co.uk/forum/legal-issues/185051-claim-form-received-today.html#post1992524 Stick to the deadlines on responding to the claim and submitting a defence.....you might also be interested in this too many thanks to Stephen4064 and

 

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.

Here is a request for strike out based on the above Quote:

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

 

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

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

 

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

 

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

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

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

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

obviously, dates need to be changed to suit.


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.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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Thanks so much for that info and just to make sure that we get this right CPR will go SD tomorrow with 7 days to respond. In the meantime I would like to try and prepare some sort of defence although I appreciate this may be subject to change dependent on Evershed's response. How much of the info you have given me do I use for the defence? When we get to the AQ stage do I then go in to more detail to support the request for a strike out? This is so new to me and I really do want to get it right. I can't tell you how valuable your advice is.

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Re the CPR I realise I can ask for the CCA agreement and Default Notice as mentioned in the POC but do I also ask for a copy of the assignment and the termination notice. They did not actually send a termination as they defaulted and terminated at the same time. Also we have never received a formal notice of assignment only a pre debt collection notice from nwide and a letter from KPR saying that nwide have instructed them to collect the debt on their behalf.

 

The poc is "The Claimant's claim is for the sum of xxxx being the amount due on account re xxxx being a credit agreement regulated by the CCA 1974. A Consumer credit default notice has been served by post on the defendant and has not been complied with"

 

Can I therefore only ask for the docs mentioned inthe POC? Could someone help today pse as I would like to get in the post tonight.

 

Many thanks

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Have they actually mentioned that the debt has been assigned ? i.e. is the debt still owned by Nationwide ? If it is then the debt will not have been assigned.....make sure you have read the CPR31.14 as it will need some editing....


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.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Thanks for that 42 man and I have read CPR 31.14 and I feel I can only ask for the Agreement and DN. I don't believe we have ever actually received a formal notice of assignment - I have been looking at some of these forums and I gather that such a document is a fairly formal procedure but in the absence of never having received one I cannot be sure. Presumably a letter from KPR saying they have been instructed to collect the debt is not assignment? In that case I can only ask for CCA and DN - would you agree?

 

Thanks for your help

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I have sent CPR to esheds and am waiting for a response which in order to meet the 7 day deadline should come by Thursday of this week.:rolleyes: In the meantime I have prepared a defence which I would be grateful if someone could look at for me please. This is difficult one to manage - the POC was dated 30 July and I estimate 33 days will expire on tuesday 1 September. This is the day after we come back from holiday (31 August) which is in itself a bank holiday so even if we were around I couldn't submit the statement to the court in time. In any event I know from some forums that the 33 days is being ignored in some cases. So I really need to get this sorted by Friday of this week when we go away. I have prepared the defence on the basis that no response to CPR has been forthcoming which I will amend should that situation change but if someone please could just have and look for me and offer some advice. I am sure you can appreciate time is of the essence and I am desperate to sort by Friday of this week. Thanks in advance

Defence cag.doc

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I should have mentioned that we were not issued with an LBA but not sure if this is relevant at this stage. If so how do I articulate this in my defence?

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Bump if I may

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Bump again - is anyone willing to offer some advice on this one? This is a genuine case never been in this predicament before and we are desperate for some sound advice. Could anyone help please as we are feeling quite vulnerable.

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Hi Panty - looked at your thread in response to your PM

 

Comment FWIW:

 

1. Appears that they have issued 2 x DNs (IMO both defective) & have then gone on to terminate (letter from Eversheds in May 2009) on those DNs. No good on a defective DN!

 

2. The agreement they have sent in response to S78 & CPR31.14 request is an applic. form - nothing more. The T&Cs they have sent show prescribed terms but they would have to prove they were the reverse (or somehow permanently attached otherwise) of the applic. form for it to be enforceable. It is quite clear that the T&Cs were obviously a fold out (seperate doc) & therefore couldn't be 'within the four corners' of your agreement.

 

3. You haven't posted the POC so I can't comment on how relevant your defence is but would suggest it is probably too detailed for a defence - keep most of it for a witness statement & maybe not totally accurate in parts.

 

4. Re. NOA - have Eversheds issued the POC as claimants? If they have, the debt has almost certainly been assigned; if it's in the name of Nationwide with Eversheds as solicitors it hasn't been assigned.

 

5. You have 28 days to submit a defence from date of service - not sure how you calculate 33 days. You also say in Post 1 that the summons from Eversheds was dated 9 July but then refer later to 30 July :confused:

From 9 July your defence should have been in last week; from 30 July it would have to be in by 29 August I think.

 

If you can post the POC, I may be able to comment further.


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Hi FG

 

Thanks for your speedy response and will scan in POC in a few minutes which will clear up some issues. The POC has been issued as NW so no it has not been assigned which I realise now. I am learning so much from this site. Agree with your comment re app form and T&Cs but I am a bit worried about defence statemnt - too long? Anyway if could look at POC and offer some advice on defence statement I would be so grateful. Just give me a few mins.

 

Thanks so much Panty

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Hi FG

 

Sorry it took so long but POC now attached. It was dated 30 July 2009. Many thanks for your help. Can I just say the CCA has only ever come with s78 - they have not yet replied to the CPR

 

panty

CCE00000[1].pdf

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Thanks panty - doesn't tell you much there does it?!!

 

Anyway if issued 30 July, you have oodles of time to get defence in. How long before you go away? (PM me if you want those details private)

 

Have you sent in the AS form yet? If not, do you intend to counterclaim for any unlawful charges that may have been applied to the account of have you already reclaimed these?

 

It doesn't matter whether CCA came in response to S78 or CPR request, you have it. What did the DNs come in response to? And I guess that you applied for statements & they have not arrived - correct?

 

I'll take a look at your defence again later & post back...


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Hi FG

 

Thanks so much for your response and I will PM with those details

AOS has gone in but did not indicate to counterclaim only to defend. DNs came after a lot of standardised 'you have failed to pay' reminders.

 

I should have mentioned last night the response to SAR submitted by us dated 6 February 09 came last Friday 7 August (after the Court Summons) yes with statements but still with the application form.

 

Thanks for looking at the defence - can I just ask does the absence of an LBA make a difference at this stage?

 

Kind regards

 

Panty

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LBA won't make a huge difference.....


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.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

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Hi panty

 

I've reproduced your defence & amended a bit - save some of the stuff for your witness statement. Fill in dates etc. & make sure everything looks correct - you know all the facts, I don't.

 

Defence

1. I XXX of XXX am the defendant in this action. I am a Litigant in Person and make the following statement as my defence to the claim made by Nationwide Building Society.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s 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: -

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the method by which the Claimant calculated any outstanding sums due, the details of any default notices issued or any other matters necessary to substantiate the Claimant's claim.

 

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

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served with the Particulars of Claim.

4. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

5. In the build up to this action, on xxxx the Defendant wrote to Nationwide Building Society requesting a copy of his Credit Agreement pursuant to S77/78 of the Consumer Credit Act 1974. Nationwide BS replied to the request on the xxxx by supplying an Application Form. This did not contain any prescribed terms that are defined by S60(1)&(2) of the Consumer Credit Act 1974 as the essential components of a regulated agreement under this Act.

 

6. On xxxx the Defendant submitted a request under CPR31.14 for a true signed copy of the agreement that the Claimant is relying upon in pursuit of this claim. To date the Claimant has not responded & the court’s attention is drawn to the fact that without disclosure of the requested documentation the Defendant has not had the opportunity to assess if the documentation which the Claimant seems to be relying upon to bring this action actually contains the prescribed terms as required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), 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

 

7. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in (7) above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore it is not enforceable by s127(3) of the same Act.

 

8. So there should be no misunderstanding, it is noted that the agreement referred to by the Claimant would have commenced prior to the inception of the Consumer Credit Act 2006. It is therefore regulated by the Consumer Credit Act 1974 s127 as Schedule 3 s11 of the Consumer Credit Act 2006 prevents retrospective application of s15.

 

9. The court’s attention is also drawn to the authority of the House of Lords in Wilson-v- First County Trust [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 by the court.

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance’

 

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 - the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

"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."

10. The Claimant is therefore put to strict proof that a compliant document exists.

 

11. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendants have had benefit of the monies and therefore the Defendants are liable, reference is made 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

’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 s65(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’

 

12. The Defendant denies receipt of a default notice(s) & puts the Claimant to strict proof of mailing of such. Section 87 (1) of CCA1974 states:

"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,

If the Claimant cannot materially prove that a default notice(s) has been sent to the defendant, this account has been unlawfully terminated.

 

13. The Claimant is also put to strict proof that any Default Notice sent to the Defendants was valid. 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).

 

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)

 

14. On xxx the Defendant requested a copy of any such Default Notice & proof of its delivery under CPR31.14. To date the Claimants have not supplied this documentation.

 

15. On xxx the defendant submitted to Nationwide Building Society a Subject Access Request under the Data Protection Act 1985, requesting statements relating to this account. This request was met by the claimant on xxxx. The defendant now has reason to believe the amount cited in this claim may include unlawful penalty charges & therefore disputes the accuracy of the sum claimed.

 

Conclusion

 

16. Notwithstanding the fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default has been served upon the Defendant and therefore the Claimant is precluded from taking such action. The Claimant’s entitlement to payment of the sum £12652.75 is denied.

17. In view of matters pleaded, the defendant respectfully requests the court to give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

 

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

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

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

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

 

18. If the court considers such action inappropriate, it is requested that the court order the Claimant to produce the following documents within 14 days:

 

(a) an original credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983.

(b) a copy of any default notice sent by the Claimant in respect of this account & the proof of delivery of such.

 

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

Statement of Truth

 

I believe the above statement to be true and factual

 

Signed

 

Dated

 

 

As you have submitted the defence 'early', suggest you also send an accompanying letter to the Court Manager explaining that you will be away until xxx so not available for service of docs in case they send the AQ early too.

 

Have a great hol...FG

Edited by foolishgirl
amendment
  • Haha 2

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Hi foolishgirl

 

Thanks so much for your support - defence will go SD tomorrow with explanation to Court Manager as you advise. Will keep you updated on outcomes and in the meantime I have tipped your scales..Onwards and upwards!

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Thanks panty - hope all goes well, you certainly would seem to have a good case.


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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We have now received AQ 150 and need some help in completing it. We have only just come abck from annual leave and it has to be back in court by 7 September. I have been looking around some of the forums and feel reasonably confident apart from sections F and I. Section F do I use this as advocated by 42 Man

 

Between

 

 

************* - Claimant

 

 

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order file and serve the following:

  • Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  • Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  • Document, contract or deed of assignment
  • Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  • Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

  • An amended defence sufficiently particularised in response to the documents supplied by the claimant

and for Section I

 

 

N149 / 150 **Allocation Questionnaire

 

Section G / H **- other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further.

 

Is there anything I could add to stregthen the case. CPR 31.14 submitted on 4 August 2009 still has not been complied with. Any expert advice would be more than appreciated.

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That all looks OK to me panty & relevant to your case.

 

Just one quickie, can't remember without rereading all your attachments - just make sure it's under £5000 claim to ask for small claims track, otherwise it will probably be allocated to fast track.


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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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.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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Thanks foolishgirl and 42 man for your swif replies. It is over 5k so I will go for the fast claims route. Once again many thanks

 

Panty

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