Eversheds/Nationwide issue court docs

[foolishgirl]

You need to list EVERYTHING you intend to show at the hearing even if the docs have come from the claimant otherwise it will be ruled out.

[panty54]

Thanks for that FG but can I also list "without prejudice"corres from Eversheds?

 

Panty

[foolishgirl]

It can't be shown to the court until after the judgment so it doesn't need to go into the disclosure list or your eventual bundle but you should have it with you at the hearing & you can refer to it as something general like 'corresp. sent/received' etc if you need to but you can't mention the exact content of it.

[panty54]

OK thanks for that and hopefully just one last question. Given that Eshed were the sols in the recent McDuff case do I quote that in my disclosure list under case law just in case they try to use it to their advantage?

 

Panty

[panty54]

bump - disclosure list has to be in for Thursday and not sure whether or not to include the recent McDuff? ie outcome relevant to that case only and concerned an enforceable agreement as opposed to unenforceable. Just bothered Esheds might try to use it to their advantage.

 

Panty

[foolishgirl]

If they want to bring up McDuff, they'll put it in their list (or even bring it up at the hearing anyway ). It's of no consequence to your case so forget it & if they do bring it up, contest it vigorously!

[diddydicky]

subbing

[panty54]

Hi everyone

 

Well today is 12 November and deadline for submission of disclosure list was 4.00 pm today. My list has gone to Esheds plus the court but needless to say nothing back yet from Esheds. This makes it difficult to inspect or ask for copies of theirs by 4.00pm Thursday of next week. What happens next? Do I contact court now or what?

 

Panty

[foolishgirl]

Solicitors always leave everything to the 11th hour (& very often beyond!) so there is plenty of time yet for Eversheds to come up with something. In fact it wouldn't surprise me if they leave it until the 19th & then expect you to accept an email copy. (Of course you won't!!)

 

IMO that would be the time to start firing the guns. However, no harm in checking with the court tomorrow if a disclosure list has been dropped with them - they may have just (deliberately??) failed to serve you with a copy.

[Craftygirl42]

I got mine today Panty, but they have admitted on it that they dont have a default or termination notice, which they were ordered to provide by the Court.

 

I rang the Court today to find out what to do, and they have apparently received a letter from the claimant and its gone before the judge and to wait till next week to see what the judge decides. Keeping fingers crossed

[panty54]

Hi FG and CG

 

Thanks both for your responses. Will phone the court tomorrow to see what's happening and CG very interested in your situation. Let us know how you get on. Will update you over the weekend hopefully.

 

Panty

[panty54]

Well today is 22 November and the deadline for submission of disclosure by both parties was 4.00 pm 12 November and for inspection 4.00 pm 19 November. My disclosure went in on time but in the interim not a whisper from Esheds. I'm not sure what to do next. When I phoned the court last week they said they were about 5 days behind with their paperwork and couldn't update me. Do I contact the court again for an update and what action could they take now or should I just go for a strike out on N244?

 

Thanks Panty

[foolishgirl]

Strike out without a doubt!!

 

No disclosure, abuse of court process. Even if the court is 5 days behind, that would give them officially until 17 Nov, we're now way beyond both that & inspection date. They have no excuse.

 

Suggest you get your applic. in tomorrow. Shout if you need help...

[diddydicky]

yes, id agree- knowing the courts they will probably still allow them grace but neverthless, time for some arse kicking i think

[panty54]

Hi FG

 

 

Thanks for your response, much appreciated, and my application for SO is attached. I have referenced lack of agreement, faulty DN and failure to comply with CPR 31.14. Is this sufficient or do I have to incorporate failure to comply with court directions ie failure to produce standard disclosure of docs and if so, how? They were late getting their AQ in and only did this by further direction of the court with a threat of strike out if they failed to comply. They seem to be getting a lot of leniency from the court but this latest episode might just stretch their patience a little? (or am I a foolish optimist?)

 

regards Panty

App for SO.doc

[diddydicky]

I suggested a couple of changes which i put in Capitals

 

as far as the DMN is concerned a dn issued on a thursday is deemed served on the following monday by first class post therefore you have 14 days AFTER the day of service to that is starting tuesday not monday

 

 

 

 

In the xxxx County Court

 

Claim number

 

Between

 

Nationwide Building Society - Claimant

 

and

 

xxxxx

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and because it is averred that the claimant has commenced a vexatious action in contravention of the overriding objectives of the CPR in the full knowledge that he does not have the evidence to support a cause of action. Additionally, this application is made in accordance with the Civil Procedure Rules, Part 3.4 on the basis that the plaintiff’s claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:

 

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

 

In this case, the claimant maintains that the documents produced by the claimant and upon which their case relies, namely, a Consumer Credit Agreement purportedly signed by the Defendant, (attached and marked as xxx) and a default notice (attached and marked as xxx) must fail at law and it is appropriate that their case be struck out without a trial.

 

The claimant’s Letter of 17 November 2008 (attached and marked as xx) makes a statement that the single sided, photocopied, document referred to above (xxx) is a true copy of the credit card agreement regulated by the credit act 1974. The defendant claims that this cannot be valid at law for the following reasons:

 

The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below.

 

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

 

It is submitted 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. These terms must be contained within the agreement. They cannot be contained OR REFERRED TO within a separate document. The prescribed terms must be CONTAINED WITHIN THE FOUR CORNERS OF THE SIGNATURE DOCUMENT for it to be EFFECTIVE AS A CREDIT AGREEMENT compliant with section 60(1) Consumer Credit Act 1974

 

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."

 

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

 

The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Furthermore the court’s 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.

 

The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court could not issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and whether it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.

 

In addition to the requirements of schedule 6 of SI1983/1553 these terms must be within the agreement itself, not in a separate document. I refer to the judgement of Tuckey LJ from Wilson and Hurstanger in point 17 above, from reading the document submitted as the "agreement" I cannot see any prescribed terms within the document and since they cannot be contained within another document as laid out by Tucky LJ then I cannot see any other conclusion other than the agreement rendered unenforceable.

 

Therefore it is submitted that this document falls foul of the Consumer Credit Act 1974 as previously outlined in points 18 through to 24 and as a result Section 127(3) prevents this document from being enforced.

 

DEFAULT NOTICE

 

The claimants also state in their Particulars of Claim that a default notice has been served in accordance with S 87 of the Act. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received. S 87 of the Act clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement. 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....

 

Furthermore s 88 of the Act requires that a Default Notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Thus, if the Default Notice is not in the prescribed form, it is invalid and, under s87, the lender has no right of action. CIVIL PROCEDURE RULES3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

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

 

THE REQUIREMENT FOR A VALID DEFAULT NOTICE TO LAWFULLY TERMINATE AN ACCOUNT WHILST IN DEFAULT

 

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.

 

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."

 

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

 

Further to point 2 above, Civil Procedure Rules rules on service also state the required timescales to be given for serving of documents :- Under Civil Procedure Rules 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.

 

The Default notice supplied by the Claimant is dated Thursday 12 February 2009, 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 TUESDAY 17 February 2009, namely TUESDAY 3 March 2009, not the 14 calendar days from the date of the letter as stated in the Default Notice which would have been 26 February 2009.

 

The defendant therefore puts the Claimant to strict proof that any Default Notice sent to was valid and allowed the statutory 14 clear days to rectify the breach. The defendant also notes 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).

 

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.

 

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).

 

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.

 

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…

 

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

 

The defendant notes 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.

 

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 the defendant as it failed to allow the required time to remedy the alleged default.

 

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.

 

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.

 

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.

 

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 12 February 2009. 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.

On 4 August 2009 the Defendant made a request for information pursuant to the Civil Procedure Rules part 31.14 for a copy of the agreement and the default notice. Despite the fact that Civil Procedure Rules part 31.15 insists that the claimant furnishes these documents within seven days the legitimate request has been completely ignored.

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.

 

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.

 

 

 

 

 

 

 

Statement of Truth I , believe the above statement to be true and factual

 

 

 

did you have the envelope it was served in? was it first class? if it wasnt you should refer to it being 4 days for service etc and THEN say EVEN IF the notice was sent first class, which is denied, then the service date would be ....etc etc

[panty54]

Hi DD

 

Thanks for your response and I will make the changes you suggest. No, don't have the envelope for the DN but will make sure I qualify the statement as you advise.

 

Panty

[foolishgirl]

IMO the above is an excellent defence/WS but probably too lengthy for an application.

 

On the N244 form there is a short space for briefly outlining your reasons i.e. a couple of paras. This should then be followed with an attached WS in which you can put most of the stuff above. However note that the WS has to be in the first person eg. I did, I received etc.

 

So your reasons would be (a) no documents supplied to support the claim

(b) non compliance with court orders re. disclosure.

 

Your WS statement then has to expand on these points only - forget the other details, you risk either boring the pants off the DJ or making him think this is a complicated case that requires a hearing.

 

I recently helped another CAGer with an app here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/210585-claim-struck-out-can-7.html

 

Your details are different but it gives the general format for you to follow (Posts 110 & 121)

[panty54]

Thanks FG for your advice and it really is not my intention to bore the pants off the judiciary but I am struggling to trim the Witness Statement without jeopardising the case. Do you have any suggestions as to how I could prune it? I have amended it to the first person as you advise. I have done a briefer statement for section 3 of the N244 - will this be OK? Also a draft order for directions. What do I say to Q5, Q6, Q8 and do I have to pay 75 squid? Thanks for all your help - this is difficult to manage when you are out at work all day and you expertise is greatly appreciated.

N244.doc

DO for directions.doc

[foolishgirl]

OK panty, IMO amend your N244 at (3) to this:

 

An order (a draft of which is attached) that the claim be struck out (pursuant to rule 3.4(2) CPR and judgment entered for the Defendant because:

(a) the claimant has failed to provide ***disclosure by list*** in accordance with the court order dated xxxx (CPR 3.4(2)©)

(b) the claimant has failed to supply information to the Defendant from a request made by the Defendant on 4 August 2009 in accordance with CPR31.14 to enable the defendant to prepare a defence to this claim (CPR3.4(2)©)

© this claimant has failed to produce any material evidence to support their claim & it therefore has no realistic prospect of success (CPR3.4(2)(a))

In your Draft order suggest you change the first para to:

 

UPON reading the Defendants Application Notice dated xxxx and the parties’ witness statements

 

I'll look again at your WS later...

 

 

 

[foolishgirl]

What do I say to Q5, Q6, Q8 and do I have to pay 75 squid?

 

Q5 at hearing

 

Q6 10 minutes and no not agreed by all parties

 

Q8 District judge

 

Yes, you have to pay the fee but you are asking for it back in the D/O plus if you get the strike out, your next claim will be a wasted costs order won't it?

[panty54]

Thanks FG and will update my paperwork tomorrow - with each step of the way everything becomes much clearer and your suggestions for N244 are much more succint and transparent. Thanks again Panty

[foolishgirl]

Hi panty, have looked again at your WS & would suggest cutting its content as below. However make sure you check it very carefully - only you know all the facts - & amend where necessary. Any abbreviations (eg CCA) have to be written in full. Also you need to do exhibit sheets for all the enclosures. If you don't know how to do them, shout...

 

In the xxxx County Court

 

Claim number

 

Between

 

Nationwide Building Society - Claimant

 

and

 

xxxxx - Defendant

WITNESS STATEMENT

1. I, xxxxx, am a litigant in person & make the following witness statement in support of my application for a strike out of this claim dated xxxx.

2. The Claimant commenced these proceedings on xxxx without supplying copies of the documents they would seek to rely on to prove their case.

3. On xxxxx I submitted a request under CPR31.14 to the Claimant for true copies of those documents & further information in order that I could submit a comprehensive defence. The Claimant failed to comply with this request & subsequent ones made on xxxx, xxxx. (Attached Exhibit A). Instead they chose to make a statement on their Allocation Questionaire dated xxxx falsely claiming that they had sent me a copy of a credit agreement containing the prescribed terms as dictated by S60 of the Consumer Credit Act 1974, that they had served a valid default notice on me & that the sum claimed did not contain unlawful penalty charges.

4. On xxx both the Claimant & Defendant were ordered by the court to submit a disclosure list by 12 November 2009, inspections to be requested by 19 November 2009. I submitted my disclosure list to the court & the Claimant on xxxx. To date I have not received the Claimant’s disclosure list nor, I understand, has the court received a copy either.

5. On 17 November 2009, I received a letter from the Claimant stating that the single sided, photocopied, document shown in Exhibit B is a true copy of the credit card agreement regulated by the Consumer Credit Act 1974. This document does not comply with the said act as it is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

6. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts including a requirement that the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below.

 

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

 

The document supplied by the Claimant 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. These terms must be contained within the agreement. They cannot be contained or referred to within a separate document. The prescribed terms must be contained within the four corners of the signature document for it to be effective as a credit agreement compliant with compliant with section 60(1) Consumer Credit Act 1974 (Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299)

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. However the court is precluded from ordering enforcement under S127(3) of the CCA1974 where the agreement does not contain the prescribed terms. I refer 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.

‘The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court could not issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and whether it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.’

 

7. The Claimant has not produced any material evidence of the proper service of a valid default notice on me before terminating my account as required by S87(1) of the Consumer Credit Act 1974 nor that any such notice was in a prescribed format (S88(1) CCA1974) as laid down by the 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).

8. The copy default notice supplied by the Claimant is dated Thursday 12 February 2009. The date for remedy is not stated as a precise date as required by the above regulations & does not allow sufficient days for remedy & posting.

9. 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 it was concluded that 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.

10. 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.

 

11. In addition the Claimant has not supplied proof of posting. I therefore aver that, it cannot be established that this notice was sent by the Claimant & that even if served properly, the default notice is invalid. Therefore under S87 of the Consumer Credit Act 1974, the Claimant has no right of action.

12. In view of matters pleaded, I respectfully request the court consider this application to order a striking out of this claim pursuant to CPR 3.4(2)

(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.

It is my opinion that all the above applies to the circumstances of this case.

Statement of Truth

 

 

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

 

 

Signed .....................

Date

 

[panty54]

Thanks FG I will go through this with a fine toothcomb just to make sure the detail is right. I do have a link for setting out a Witness Statement and I will refer to this. I think I have enough detail now to finalise and submit to court. Do I tell Esheds or just send them a copy of N244?

 

Can't thank you enough for your help

 

Panty

[diddydicky]

if i may suggest:-

 

 

i think that the statement with relation to the missing PT's needs to include the date of your agreement and point out the fact that the 2006 act was not retrospective and therefore this is the reason why the the court is prevented from enforcing the agreement