co-op v hunterandthehunted. - STATUTORY DEMAND RECEIVED **SETTLED **

[hunterandthehunted]

no its not opening up properly, boxes and lines all over the place which as a result is not showing the text. is there a way i can use pdf and type in text

 

never mind

 

Forms

 

could somebody click on the link above and confirm that the 6.4 form works please. i have managed to get 6.5 to work but am not getting 6.4 to display properly

[mkb]

Works fine for me but try going directly to the form.

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

[hunterandthehunted]

Works fine for me but try going directly to the form.

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

 

aha,

thankyou very much.

 

another daft question, how do i add text on the pdf format?

 

deleted

[mkb]

Have attached the Word version for you.

6-4.doc

[lilly white]

h what version of word do you have

[hunterandthehunted]

h what version of word do you have

 

2007

 

the 6.5 opens fine but the 6.4 opens up in loads columns and lines.

i have tried to adjust the form best i can and this is the result.

is it acceptable....

Rule 6.4

Form 6.4

 

Application to Set Aside a Statutory Demand

 

 

(a) Insert name and address of person to attend hearing

Let (a)

 

attend before the Registrar as follows:

 

Date

 

Time Hours

 

Place

 

 

(b) Insert name of debtor

on the hearing of an application by (b)

 

the applicant for an order that the statutory demand dated

be set aside.

© Insert date

The grounds on which the applicant claims to be entitled to the order are set out in the affidavit of the applicant sworn on ©

a copy of which affidavit accompanies this application.

(d) State the names and addresses of the persons to be served

The names and addresses of the persons upon whom this application should be served are:

(d)

 

(e) State the applicant’s address for service

The applicant’s address for service is: (e)

 

 

Dated

 

Signed

 

(Solicitor for the) Applicant

 

If you do not attend, the Court may make such order as it thinks fit

[lilly white]

looks ok to me

[hunterandthehunted]

The names and addresses of the persons upon whom this application should be served are:

(d)

 

is this the co-op or the acting solicitors?

[42man]

Adding some useful bits...

 

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.

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.

[hunterandthehunted]

42 man that is just perfect. obviously i have to change dates and edit here and there but can i use all of that and just drop it into the defence lilly posted in post 106. i am struggling to understand what prescribed terms of the cca they have provided are missing.

Edited January 19, 2010 by hunterandthehunted

[42man]

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

[hunterandthehunted]

part 1/ so are the prescribed terms there or do they have to be on the signature page. i have lots of feedback stating that the cca provided is unenforcable but after reading the relevent sections of the act i am struggling to understand why. i am thinking about just going down the unlawfully rescinded account because of an unlawful DN the first time they terminated, so the alleged agreement does not exist. would this suffice

 

part 2 clearly states the apr being 10.8%

[42man]

It can go down to the judge at the end of the day.... - 4 corners is here - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/159697-order-prescribed-terms.html

[hunterandthehunted]

DELETED....

 

deleted

 

big waves to the guest.............

 

deleted

Edited January 31, 2010 by citizenB
tidying up empty postings

[lilly white]

h taken from recent court case carey and others v the banks etc

 

 

1. Then, by Regulation 6 and Schedule 6 the following terms had to be contained in a regulated agreement for running account credit if it was not to be an IEA, and were prescribed for the purposes of s61 (1) (a):
   
   "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit" (paragraph 3 of Schedule 6);
   "A term stating the rate of any interest on the credit to be provided under the agreement" (paragraph 4 of Schedule 6);
   "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:
   number of repayments;
   amount of repayments;
   frequency and timing of repayments;
   dates of repayments;
   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." (paragraph 5 of Schedule 6).
   I shall refer to these as "the Prescribed Terms".
   
   
    
   
   
   there you go
   
   
    
   
   
   thanks to 42 man for looking in
   
   

   
   

 

h i wil get you a link if you want to this case if you want

 

from the same case

 

 

1. The relevant provisions are as follows:
   
   "140A Unfair relationships between creditors and debtors
   (1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following-
   (a)
   any of the terms of the agreement or of any related agreement;
   (b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
   © any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).
   (2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor) "
   "140B Powers of court in relation to unfair relationships
   (1) An order under this section in connection with a credit agreement may do one or more of the following-
   (a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);
   (b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;
   © reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;
   (d) direct the return to a surety of any property provided by him for the purposes of a security;
   (e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;
   (f) alter the terms of the agreement or of any related agreement;
   (g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.
   (2) An order under this section may be made in connection with a credit agreement only- (a) on an application made by the debtor or by a surety; ...
   (9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary."

   
   

2. In Adris it is alleged that no s78 copy was provided. That must be assumed to be so for the purpose of my decision on this issue. Then paragraph 10 of the Particulars of Claim pleads as follows:
   
   "The Claimant contends that the Defendant's failure to respond to the request made under section 78 of the Act creates an unfair relationship between the parties within the meaning of section 140A of the Act."

   
   

3. The claim of an unfair relationship depends solely on the absence of a s78 copy. No other facts are alleged. The legal foundation for the allegation can only be sl40A(l)© - something not done by the creditor ie no s78 copy.
   
4. The relief originally sought pursuant to sl40B was (a) a writing down to zero of Mr Adris's credit-card account with RBS and (b) the return of all monies he had ever paid to RBS in discharge of his credit card debts on the grounds of payment under a mistake. That latter claim has now been abandoned.
   
   Analysis

   
   

 

1. 
   
2. 
   
3. 
   
4. 
   
5. 
   
6. 
   
7. 
   
8. 
   
9. 
   
10. 
    
11. 
    
12. Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
    
    "The Court shall not make an enforcement order under s 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 s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

    
    

13. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".
    

 

same case

[hunterandthehunted]

lilly,

 

what you think of the defence (10 pages so far).i have amalgamated it all together and edited it best i could. i have yet to add in all the

exhibits or documents but wasnt sure if this was the way to go. i will add in all the costs later on....

 

thankyou

Edited January 19, 2010 by hunterandthehunted

[lilly white]

h i do not know why i cant edit the defence

 

howeve it is find just TAKE out 9 the cca act which is in red

 

 

apart form that fine and are you happy what we are saying

 

i cant see the PT in the CCA HOWEVER IT IS NOT EASY TO READ

 

ALSO THE DEFAULT NOTICE IS WRONG

 

REGARDS

 

LILLY

[hunterandthehunted]

DELETED POST

 

ok

h i do not know why i cant edit the defence

 

howeve it is find just TAKE out 9 the cca act which is in red

 

 

apart form that fine and are you happy what we are saying

 

i cant see the PT in the CCA HOWEVER IT IS NOT EASY TO READ

 

ALSO THE DEFAULT NOTICE IS WRONG

i have added in about the default and termination notices, is this wrong?

 

REGARDS

 

LILLY

 

could someone take a look at my set aside application and advise please. i have highlighted some areas in red which may need some more attention and i am wondering if it is too long.

thanks in advance...

 

 

I hunterandthehunted is the Defendant in this action and I totally dispute the debt.

 

1/ The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms as set out in s60(1) of the consumer credit act 1974 and the The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

2/ The alleged creditor terminated the account 4 days after supplying a default notice, thus not allowing the statutory 14 clear days to rectify the breach, therefore unlawfully rescinding the agreement prior to the time allowed for remedy.

3/ The alleged creditor has not provided any proof that the alleged agreement has been securitised by English law

4/ Under section 78 (1) of the Consumer Credit Act a formal written request for a true copy of the consumer credit agreement was sent to the co-op bank on the 16th April 2009 (DOCUMENT 1)

 

5/ To date all I have received is an illegible application form which did not comply with the requirements of the Consumer Credit Act 1974 (DOCUMENT 2)

6/ The Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557) states that:-

Legibility of notices and copy documents and wording of prescribed Forms

 

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

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act

without any alteration or addition, except that--

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

7/ THE CONSUMER CREDIT ACT IN SECTION 78(1) STATES THAT:-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

8/ THE CONSUMER CREDIT ACT IN SECTION 78(6) STATES THAT:-

 

(6) If the creditor under an agreement fails to comply with subsection (1)

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

It must also be noted that the agreement must contain the prescribed terms.

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

 

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trust's right to recover the total sum payable on redemption, which included the principal as well as interest.’

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

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

 

(a) The Default notice supplied by the Claimant is dated 22nd July 2009 ,thus the Rectify date should be 14 calendar days from 22nd July 2009, namely 5th August 2009. (this rectify date is clearly stated on the Default notice)(DOCUMENT 3).

 

(b) the Termination notice supplied by the claimant is dated 26th July 2009, thus not allowing the statutory 14 clear days to rectify the breach, therefore unlawfully rescinding the agreement prior to the time allowed for remedy (DOCUMENT 4).

(c ) furthermore the claimant issued another default notice dated 8th December 2009, (DOCUMENT 5) And another Termination notice dated 15th December 2009 (DOCUMENT 6) This is a breach of …………. Please fill in the gap……… as there is no longer an account for a default notice to be issued on as the account was unlawfully rescinded when the first Default and termination notices were issued so the alleged agreement hasn't existed since the unlawful rescission.

 

10/ 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).

 

11/ 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.

 

12/ 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).

13/ 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.

 

14/ 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…

 

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

 

16/ 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.

 

17/ 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.

 

18/ 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.

 

19/ 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.

 

20/ 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.

 

21/ 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 on26th July 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.

 

22/ The claim is for the early repayment (i.e. before the full term of the alleged 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 default notice 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 Secretary 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 a termination notice can be issued.

23/ The default notice supplied by the Claimant is dated 22nd July 2009 and says "To remedy this breach, payment due on your account of £260.00 must be received within fourteen calendar days from the date of this default notice", i.e. by 5th August 2009. 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.

 

24/ 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).

 

26/ The claimant’s have continued to supply a statement each month and have added a total of £354.53 of various charges on the terminated account which I believe to be unlawful.

27/ On the above information I request that the demand is set aside and I kindly ask the judge award my costs in this matter as a LITIGANT IN PERSON.

 

I have a family with limited finances and I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[42man]

You have mentioned the Boggis case....is there an abuse of process in the service of the stat demand ?....otherwise this looks fine, make sure it is neat and numbered correctly too...

[hunterandthehunted]

thanks 42man,

did you check out the red areas?.

on the 6.4 form, namely this bit, do i add the creditors address or the solicitors

acting on behalf of the solicitor

(d) State the names and addresses of the persons to be served

The names and addresses of the persons upon whom this application should be served are:

(d)

[IainHL]

HatH, not that I want to divert your attention away from the important task at hand, that is preparing your set aside application, but I ask because I too have an ongoing dispute with the Co-op.

 

Did you ever get a letter (from the Co-op or one of their DCAs) threatening to serve you the Statutory Demand? If so, did you reply to that letter in any way? I ask because last year I got such a letter from some part of the Gothia empire (Red Castle Recoveries or Resolution Legal Services). I responded with a detailed letter pointing out all the the Co-op had done wrong (very similar to your case with regard to the agreement, default notice and termination) and informing them that should they serve a Statutory Demand I would apply to have it set aside. That seems to have kept them at bay for a good few months.

[42man]

Put the names of the solicitors and the original creditor if they are both named on the demand...

[hunterandthehunted]

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change of plan,

i am going to try and get the defence on 2 pages and try and be to the point instead of blabbering on about case law, i was already told by a district judge last week not to keep quoting the sections of law as he was well aware of it.

[lilly white]

h

 

yes and go with it

 

regards lilly

[hunterandthehunted]

thanks lilly

i keep changing my mind but other events in other cases have forced my hand...