Car finance agreement

[postggj]

Its Only Arrears Up To The Date On The Default Letter

 

I Very Much Doubt You Will See The Inside Of A Court Room

 

Just Sit It Out

[littlefatbudha]

Thanks for your help

 

speak soon

[GamekeeperToPoacher]

subbing as I too have dodgy DN

 

GK

[littlefatbudha]

Hi, GK good to see you !

[GamekeeperToPoacher]

Sorry LFB I failed to present you with the url to my thread HERE!

 

GK

[littlefatbudha]

Many thanks GK.

Just an update, the default notice is now showing on my account, and shows as defaulted on the 15 June 2009.

I am glad about this as i was worried that another default notice had been sent to correct original, and i had not received.

The default on the letter states defaulted on 12 June, and on Experian it states 15th, ( the 12th was a friday and the 15th is the monday)

So this is the Default Notice which they are relying on !

Just one other thing the figures on Experian dont seem to math the DN that i have on paper. Steve

[noomill060]

Defence from pt2537:

 

para 11 is interesting...

 

the xxxxxxxxxxxxxxxx County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx am the defendant in this action and make the following statement as my defence to the amended particulars of claim made by xxxxxxxxxxxxxxx

 

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 Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by failing to furnish a Notice of Assignment

 

4. The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

5. 1. It is denied that the alleged agreement is in the prescribed format as required under the Consumer Credit act 1974

It is avered that this document is a multiple agreement as defined in s18 (1) and that it falls foul of s18 (2) as the insurance aspect is included in the total credit and total charge for credit

[s18 (2) where part of an agreement falls within subsection (1) that part shall be treated for the purposes of this Act as a separate agreement]

 

6. The insurance aspect of the agreement is a linked transaction as specified in s19 of the CCA and being a transaction financed under credit it is subject to the provisions of s60, s61 and s127(3) in its own right.

 

7. Furthermore each separate part of the agreement must contain the prescribed terms for each part

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

 

8. 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 within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

 

 

 

The Need for a Default notice

 

9. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

10. Notwithstanding point 9, 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.It is denied that the Default notice was received on the 02/09/2008 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

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. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

16. 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.

17. 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

 

18. 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]"

 

 

19. 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)

 

20. 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.

21. 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

 

 

 

22. 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

 

23. 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 as it failed to allow the required time to remedy the default

 

24. 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

[GamekeeperToPoacher]

Hi Noonmill,

 

Many thanks I am modding like mad - WRT para. 24 what are we looking for?

Would we not be better saying that we beilieve that the case should be struck out?

 

GK

[littlefatbudha]

I have another question "sorry !"

The Default day showing on my credit file is showing 15/06/2009, but the default date on Default Notice says 12th June,which was a Friday, so would they have to wait to close of business that day and report the Default after the weekend and on the Monday instead.

I am still worrying as they could say they sent another Default Notice and i did not receive it,and then my claim would be screwed.

i have doticed that all the post they send seems to take 4/5 days to arrive, and i imagine that this would of included the DN aswell but i cant prove that, they should have to used registered delivery and then they would not be able to lie and say they sent 1st class, or on a certain date.

I know i keep repeating myself, but i just want to make sure everything is water tight.

Edited August 13, 2009 by littlefatbudha

[postggj]

the default date was the 12 june

you would have had to rectify the default by close of biz on the 12 june

 

thats the only day that matters

 

 

you would put the claiment to strict proof when the default was sent

 

the only way would be track and trace

 

chill

 

regards

[littlefatbudha]

Thanks again for your advice, POSTGGJ, i am a bit of a worrier, when i sit down and think about things, also added another letter that i forgot to post, a previous letter from there solicitors, telling me the account was terminated, this was before the creditor had informed me, otherwise i would not of paid that money, if i knew then it was terminated.

[postggj]

who are the sols

 

cohen

 

mitchel

[littlefatbudha]

who are the sols

 

cohen

 

mitchel

 

 

Hi , i just sent you a message with the solicitors name, dont know if i should keep it quite.Steve

[postggj]

got it

 

a nobody

 

mr cohen is not doing to well

 

same crap

 

you know better

 

chill

[littlefatbudha]

Ok mate, will chill with a nice cold stella i tink !!

[littlefatbudha]

Hi guys, have spoken to a specialist consumer law solicitor yesterday morning, and she has stated the same as you guys, that the creditor broke the contract and this was unlawful.

She told me her company would like to take this on, and would take the case on a no win no fee, and if we win she will claim costs from other party, what do you think !

Edited September 28, 2009 by littlefatbudha

[GamekeeperToPoacher]

Hi LFB,

I thought that they were unable to claim costs in small claims but may be/probably am wrong.

I would be more than happy to offer my case on a CFA but time is getting short. Please PM me .

 

I will be on later today but have been invited out for lunch

 

Regards

 

GK

[littlefatbudha]

hI GK, would this go to small claims,as the contract amount is about 7/8000, i am no expert on this just a thought.

Hope you have a good lunch, not to many beers i hope !!!!

[GamekeeperToPoacher]

Hi LFB,

 

That would explain it perhaps as surely yours will be fast tracked?

 

Sadly no! I am travelling by bike so watching the weather carefully

 

A bike in the rain beats a car dry LOL

 

GK

[littlefatbudha]

Yeah dont forget the packamack ,think its the weathers ok for today, well its ok in sunny Essex, have a good one anyway !!!!!!!!!!!!!!!!!!

Speak later.

[noomill060]

Limit for small claims is £5000 in England and Wales.

 

Larger claims go to the County Court fast track or multi track.

 

[littlefatbudha]

Thanks Noomill, the solicitor said she had to speak to the other partners, i faxed other all the letters i have had, and they said they will deal with it, would try myself but dont want to sod this one up !

[noomill060]

let us know how you get on.

[littlefatbudha]

Yes i will do mate, thanks for your help again,Steve.

Will make a good donation if i win this one !!!!!!!!!!!!!

[littlefatbudha]

Hi guys, just a quick one, can default notices include charges on the default amount, such as late payment etc.

I have found a lot of old capital one statements and there are about £100 of charges which are included within default toal.Steve