Response by Howard Cohen/Santander **WON** (claim struck out)

[citizenB]

HH, if you would like to pop the particulars of claim up so we can help you respond that would be good .

[citizenB]

No scanner at the moment but here's the POC:-

 

The claimant's claim is for the sum of **** being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Santander Cards under reference **** and assigned to the claimant on 12th August 2009 notice of which has been given to the Defendant.

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

Pursuant to Clause 7 of the agreement the Claimant also claims contractual interest at the rate of 26.578% per annum from the date of these proceedings to the date of judgment or sooner payment at the daily rate of 1.52.

 

So there you go. Two things the agreement they have given us is not the one they are claiming for! and also the rate of interest they are quoting is different to what is on the agreement.

 

Nowhere on the agreement does it say GE Money it is an agreement with not only the original account number but also the agreement is with first personal credit!

 

As for the NoA this was not sent by registered post only ordinary post.

 

HH

 

Just brought the POCs down so we have them visible.

 

In answer to your question in post previous.. make a list of the issues you are going to defend on then we can take it from there.

 

Basically you have to respond to each of the claims in the POC.. for instance:

 

They say pursuant to clause 7 of the agreement they claim interest at a rate of... is there a clause 7 and if so .. does it say they can claim that interest ?

 

You will need to point out that this is an agreement under the CCA1974 and as such there are certain "rules" that have to be adhered to. Not least one where there has to be a true signed copy, with all the prescribed terms within the 4 corners. Oh and you need to point out that this was pre 2006/2007 and the regs prior to that date apply.

 

Default notice.. lack of or invalid push the points that make it invalid.

 

How much time do we have to work on this ?

[citizenB]

Claim form received 17th August so we do have a bit of time.

 

Right

 

I have no terms and conditions so cant check clause 7. The only agreement I have received is the one above which I believe is enforceable which btw is not a GE money agreement but The First Personal Bank Plc.

 

The default notice is invalid as it says 21 days from receipt of this notice and further down it says BEFORE THE DATE SHOWN but there is no date.

 

Notice of Assignment on the Howard Cohen letterhead with further down telling me that a claim has today been submitted to the county court for issue both on the same piece of paper received the day before the court papers.

 

Thanks for your help folks.

 

HH

 

 

Any chance the balance that they asked for in the DN ie the arrears, contained penalty fees/ etc. ?

 

The DN above, is this one you received through the post or is it what they SAY would have been sent ?

 

The Notice of Assignment sounds a bit odd

[citizenB]

Just borrowed this from Lux's thread - promise to return it Lux honestly.

 

Can this be used in my defence regarding the notice of assignment.

 

 

 

 

 

6. A copy of any Notice of Assignment as required by 136(1), of the Law of Property Act 1925 has not been attached to the claim form;

The Notice of Assignment

a. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between the original Claimant, GE Money, and Viking Collection Services LTD

b. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between Viking Collection Services LTD and CL Finance LTD

 

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the notice 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

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was "sent" it is assumed that this was done via the postal service.

The requirements for service via the post are

 

Law Of Property Act (1925) s196

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if "sent" via any other method, the notice was not sufficiently served

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

 

 

Thanks

 

HH

 

 

HH, is that your question, the one I have highlighted in blue at the top ?.

 

I imagine if your Assignment is the same as Lux's then yes you can use the same information. Just make sure that any dates etc, are in respect of your document.

 

Oh, and if necessary renumber to suit your defence

[citizenB]

Which letter is that HH ?. Either way, if they can screw up in a letter, then that throws some doubt around doesnt it ?

[citizenB]

HH, can you give me a link to the thread you are referring to please I will go and take a look.

[citizenB]

HH, I think you have more than just the dodgy DN dont you.

 

Account numbers different. The card style and account number changed part ways through the contract, but you havent been provided with the modifying agreement.

 

They DN refers to clause 7. But where is clause 7 and is it clause 7 on the document that was signed or on paperwork that should have been provided for the varied account?

 

Is there a clause on the original document that allows them to unilaterally vary terms and conditions ?

[citizenB]

There should be a number on the letter that you received. You will need to phone that and you will be advised further.

 

I dont know much about the process, but I understand there will be someone kind of refereeing

[citizenB]

I will contact the court tomorrow, it is not even my local court so I don't really know what's going on. I just wondered if anyone else had been through the same process.

 

How can we mediate without an agreement and valid DN is beyond me. Quite happy to go to mediation but I think it will end up back at court.

 

HH

 

It could be that your local court doesnt have a mediation section, HH. Might be worth mentioning when you phone. Also point out the absence of the documents and your concern that it would make mediation a bit awkward.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/236641-oft-lenders-must-not.html

 

HH, good. Sounds like the mediatior section is on the ball. Have a read of the thread above... nothing to do with mediation but everything to do with not having a agreement

[citizenB]

Below is a complete defence produced for a dodgy default notice.

 

It has all the postal regulations and the reasons this is a legal requirement prior to taking further action. Did you after this "imagninary" default notice, receive a termination notice and Letter before Action ?

 

A default notice needs to show the amount of arears, a specific date not less than 14 days AFTER service to remedy the breach and the breach incurred.

 

If they decide to "recreate" such a document then they should be able to provide a computer log record backing up the production of the original. That log however will not show the amount of days allowed and any other information.. just that it "may" have been produced. Most important are the days allowed for the remedy.. if they have not allowed sufficient time for posting as per the regulations below, then that makes it invalid in any case. Say for instance they have posted on a Friday.. then that would mean the day counting doesnt start until the following Monday or if it were prior to a Bank holiday then even more time would be wiped off the days allowed.

 

This is something that needs investigating very thoroughly on any recreated document.

 

 

 

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.

[citizenB]

HH, have a read of RobinWayRobinMe's thread from about post 482 onwards... pt2537 offered some advice that may just help...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement-49.html#post2905868

 

HTH

[citizenB]

Cheque for costs received today - yippee.

 

So Post the minibus is cancelled I am afraid.

 

An end to this matter at least.

 

BTW as this was an order against CL Finance for costs and as they did not pay within 4 weeks of the date of the order then they will have a judgment registered against them for the next 6 years. I would love to see their credit file:D I know I know, they are not going to last 6 months but it makes me all warm inside knowing this.

 

Thanks everyone a small donation is on its way.

 

HH

 

Hello HH, that has made my day

 

At least you can forget about this now.