Car finance agreement

[AA99]

Something along these lines:cool:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/230250-m-defence-help-please.html

[supasnooper]

have a look at the defences below. -

 

CL Finance Ltd. Recieved a court claim form**WON** Discontinued

 

Lloyds TSB Credit Card - Claim form received

 

Help! - AMEX No CCA and they've started court action. **DISCONTINUED**

 

 

Have a crack at doing one then post it up ................remember this is your case.

It is you that will have to explain to a Judge your arguement and it will help you know it even better

[littlefatbudha]

thanks for the help guys.

If mine was regarding the 14 days it would be so easy ,as all the faulty default notice cases , are basically revolving around the 14 day issue and all the defences are based on these issues and not the layout of the default notice,like mine.

I have not found any others regarding not having creditors name and address not on the default notice, and also the agreement is not executed as it has not been signed, also on the default notice it does not state which clause it refers to the breach.

If somebody could just help me word the defence regarding , not being laid out correctly i would really appreciate it.

As i am not expecting the reply to the cpr request to come till the day before the defence is due ,can i put in an embarrassed defence now and if they reply to the CPR request then file a defence.

Edited November 28, 2009 by littlefatbudha

[postggj]

evening all

 

got your message

give a brief update and ill get cracking on what you need

[postggj]

is this the embarrassed defence or main defence needed and ill get cracking as urgent

[littlefatbudha]

Hi mate,thanks for coming back to me, i have been looking through their POC this evening and it states:..............

"upon termination, pursuant to clause 12 of the agreement, the defendant became liable to pay the claimant:: all overdue payments £1106.42

balance of total payable 7150.14

total 8256.38 which does not add up, if you have a look at POC no.11 it states there, that the arrears are 1106.24 different only by .18p but still overcharging me, one other thing having a look at clause 12 ,it only states about operators licence, think they were meant to put clause 15 not 12.

Well dont know what to do about defence yet, i sent CPR 18 request to their solicitors on 16th Nov , special delivery so they would of received tues 17th , so their 14 days will be up 1 day before i am due to give my defence to the court, would i put in an embaressed defence for now, or do you think i have enough to be ok.

Dont forget the credit agreement is not signed by them , and also there does not seem to be a cancellation box infact i think it states on very top of signed agreement page ( key information contd) Cancellation rights: you have no right to cancel this agreement under the Consumer Credit Act1974, the Timeshare Act 1992 or the Financial Services (distance marketing) Regulations 2004.Whatever that means.and my main defence the Default notice, no creditors name or address .Thanks.LFB ( a little bit happier now)

Also the option to purchase fee is also included in the credit so i am paying interest on the £120 and might not have wanted to purchase the car at the end of the agreement.

Edited November 29, 2009 by littlefatbudha

[littlefatbudha]

i am trying to make a defence from other threads, i dont think i am doing to well, also have to include, that agreement not signed and clause 12 referred to in the POC does not state anything regarding overdue payments.

Here is the clause 12 link http://i899.photobucket.com/albums/a...a/IMG_0004.jpg then have a look at clause 12 0f the agreement http://i899.photobucket.com/albums/ac193/littlefatbudha/IMG-12.jpg

 

 

The Need for a Default notice

 

9. The said default notice, dated 26th May 2009,fails to include “the name and postal address of the creditor or owner( the claimant)” failure to include any of the details of the prescribed terms of a default notice served under 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)

plainly renders the said default notice defective under the above regulations.

 

10. I put the claimant to strict proof that any default notice sent to me was valid. 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)

 

11. 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)

 

 

12.The Default notice received by myself ( the defendant) Dated 26th May 2009 fails to contain the prescribed terms as noted 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).

 

13. Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

14. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

 

 

15. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

16. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

17. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

18. The statements referred to in points 17 & 18 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

19. 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) CCA 1974 which states

(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.

20. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

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

 

 

 

21. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

22. In the case of Woodchester Lease Management Services Ltd v Swayne & 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 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.

 

23. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

Edited November 29, 2009 by littlefatbudha

[littlefatbudha]

who is the guest ????????????????????????//

[noomill060]

Youre in good hands, LFB. I cant add anything else to postggj.

 

Good luck.

[littlefatbudha]

waiting for the post .....................................

[littlefatbudha]

I have nearly finished the defence, if they do reply to the CPR request , Here goes.........................................

 

In the xxxxxxx County Court

Claim Number: xxxxxxx

 

xxxxxxxxx - Claimant

 

and

 

xxxxxxxxx - Defendant

 

 

 

 

Defence

 

1. I xxxxxxx xxxxxxxx xx xxxxxxxx I am the defendant in this action and make the following statement as my defence to the claim made by xxxxx xxxx xxxx

 

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 entered into an Agreement, with the Claimant under the Consumer Credit Act 1974, dated xxx September 2009.

 

4. Paragraph 12,of the Claimants Claim Form states ‘Upon Termination, Pursuant to Clause 12 of the Agreement, the Defendant became liable to pay the claimant:-‘

 

All overdue payments £1106.42

Balance of total payable £7150.14

TOTAL £8256.38

 

I put it to the Claimant , that such a statement should be retracted, as there is no mention under Clause 12 regarding interest or any monies owed, to be repaid under Clause 12 of the Agreement, also I believe that the mentioned sum is incorrect as per the total sum.

 

4. On the 26th May 2009 the Claimant issued a Default Notice under section 87(1) of the Consumer Credit Act 1974, the Default Notice sent to the Defendant, failed to comply with 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)

(a)The Agreement was Terminated by the Claimant by way of Letter Dated 15th June 2009.

 

 

 

 

The Need for a Default Notice

 

 

I put the claimant to strict proof that any default notice sent to me was valid. 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)

 

6. 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)

 

 

 

 

7. Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

 

 

8. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

© The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

9. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

10. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

11. The statements referred to in points 9 & 10 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

12. 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) CCA 1974 which states

(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.

13. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

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

 

 

 

14. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

15. In the case of Woodchester Lease Management Services Ltd v Swayne & 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 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.

 

16. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

Edited November 30, 2009 by littlefatbudha

[littlefatbudha]

Should i include ,that the Creditors Name and Address have not been included, or wait ?

Should i use the Defence even if they do not reply to the CPR or should i just plead the Embarrassed defence untill later down the line.

Still no post, but they have untill tomorrow me thinks.

Edited November 30, 2009 by littlefatbudha

[littlefatbudha]

handed into court today,thanks

[littlefatbudha]

Received witness statement today,posted on 24th December, in the statement they have included a copy of the default notice, which now has the creditors name and address on it, and also the agreement they have included has now been signed with date 2007, by the person who has given statement, strange that !

I still have original default notice and agreement , so have to prove the one they sent was defective, oh i can do that as their solicitor sent me a copy of default with no name or address for creditor in their only reply to my cpr request.

Have handed in complaint to court today regarding amended agreement and default notice.

Is this fraud ?

the case has only been given 5 minutes so should be fun, just a few days to go.

getting nervous

Oh and they have still not replied fully to my cpr request, sent letter to court stating this.

[postggj]

Is This A Trial Date In A Few Days

[littlefatbudha]

5 January

[postggj]

So Why Have You Only Just Received The Witness Statements

 

By The Way

 

They Cant Use Them

 

Only What Has Been Previouse Supplied

 

EVIDENCE HAS ALLREADY BEEN EXCHANGED

[littlefatbudha]

So they cannot use this witness statement, are they out of time ?

Spoke to lady in court today and she seemed to think that this would be included.

I have already claimed to the court, that i should have received documents for the first cpr request which gave them to 2nd December to which the Default Notice ( with no creditors name or address, and agreement to which had not been signed by creditor) arrived on 3rd December 1 day overdue.

i originally phoned their solicitor to ask for and additional 14 days for defence to which they agreed, and stated that the cpr request was nothing more than a fishing trip, they then sent a letter attached to the info they gave me stating that i had said " that i did not want any further info as it was not relevent", to which i never said at all.

In reply to this i sent a copy of the original cpr request and the reply and also a copy of reminder to their solicitors that i wanted all available information, and to the court.

The timing on the reminder is well overdue as all documents should have been received by 2nd December.

Does it not make a difference that this is a repo hearing ?

Edited December 31, 2009 by littlefatbudha

[postggj]

I Would Be Asking The Judge To Consider If This Documentation Be Allowed

 

Abuse Of Process

 

All Evidence To Be Used In Court Has To Be Exchanged

 

Its Normally A Month Before The Trial Date

 

People Cant Do These Kinds Of Curve Balls

 

Wait For More Replies Though

[littlefatbudha]

ok mate , thanks, perhaps he should as they will be seen for changing documentation,that would look good for them.

[postggj]

The Docs They Produced Are Irelevent

Its The Docs Supplied Prior That Count

 

The Judge Needs To Be Made Aware

 

He Will Prob Throw This Out

[littlefatbudha]

fingers crossed , could they bring this back to court,if he was to.

[postggj]

Not A Chance

[littlefatbudha]

Cool

[littlefatbudha]

just a quick one, what do they mean in the last paragraph, "liberty to restore and pay costs", thanks.lfb