Nationwide/Shoosmiths v me

[citizenB]

if you re read the letter it does NOT ask for a stay due to the other cases being on hold- it cleverly states that the reason for the stay is for them to study the files and seek settlement opportunities (or similar)

 

it THEN goes on to talk about awaiting other decisions-

 

crafty or what

 

definitely, dd.. can you suggest options for stleonards please.

[diddydicky]

although i see your letter is different from mine!!

[diddydicky]

well i would certainly go for a strike out on the grounds that the plaintiff does not have a cause of action (the DN and its unlawful rescission of the agreement/failing to follow the correct procedure to claim the benefits of s87.

 

the plaintiff clearly is not entitled to claim the while balance of the account until he serves an effective DN giving the debtor an opportunity to rectify the breach

 

As he has now rescinded the agreement- he can NEVER issue such an effective DN since there is no longer an agreement to issue it in respect of

 

the plaintiff unlawfully rescinded the agreement (if it ever existed) and the defendant excercised his legal right to accept the unlawful act of the plaintiff in terminating the (alleged) agreement therefore BOTH parties have agreed a new agreement- that agreement being an agreement to end the (alleged) original agreement!!

[AndyOrch]

Object to the Stay and make application to strike out this is an abuse of Courts time and finances.

 

Regards

 

Andy

[stleonards]

well i would certainly go for a strike out on the grounds that the plaintiff does not have a cause of action (the DN and its unlawful rescission of the agreement/failing to follow the correct procedure to claim the benefits of s87.

 

the plaintiff clearly is not entitled to claim the while balance of the account until he serves an effective DN giving the debtor an opportunity to rectify the breach

 

As he has now rescinded the agreement- he can NEVER issue such an effective DN since there is no longer an agreement to issue it in respect of

 

the plaintiff unlawfully rescinded the agreement (if it ever existed) and the defendant excercised his legal right to accept the unlawful act of the plaintiff in terminating the (alleged) agreement therefore BOTH parties have agreed a new agreement- that agreement being an agreement to end the (alleged) original agreement!!

 

Object to the Stay and make application to strike out this is an abuse of Courts time and finances.

 

Regards

 

Andy

 

OK

 

Thanks all (and CB of course)

 

I will take the advice given happily!

 

I have to go to work now but shall endeavour to compile letters when I return tonight (any links to examples gratefully accepted).

[diddydicky]

OK

 

Thanks all (and CB of course)

 

I will take the advice given happily!

 

I have to go to work now but shall endeavour to compile letters when I return tonight (any links to examples gratefully accepted).

 

what i suggest you do, when you read threads- is to copy and paste into your word processor text and legal arguments that you think you might need and label them

 

saves you doing repeated searches

 

click the search button and type in what you are looking for- you may have to type several different phrases to get onto the relevant threads

[stleonards]

Thanks for the advice but after a 13 hour day at work I really couldn't find very much relevant using the search function, probably just me being dense.

 

I have replied to Eversheds objecting to the Stay with whatever I could think of, the response had to be back with them by 1pm tomorrow and I start work again at 7am in the morning.

 

I will start reading again tomorrow for the strike out application.

 

Thanks again.

[stleonards]

I came home from work to this reply from Eversheds;

 

 

 

Dear Madam

 

Nationwide Building Society -v- Ms XXXXXX XXXXXX

Claim Number: XXXXXXXX

 

We acknowledge receipt of your letter received by email on 27 October 2009.

 

As you have refused to agree a stay of this matter, we have written to them court asking them to order a stay, expressing our belief that a stay in the proceedings would be of assistance in narrowing the issues between the parties. We have informed the Court of your objections and provided them with a copy of your letter.

 

In relation to the further issues raised within your letter, we can confirm the our client’s position remains that the Default Notice served upon you is valid and lawful.

 

We continue to believe that our client has a strong case and more than a reasonable prospect of success should the matter proceed to a final hearing. Your defence seems to rely on minor technical breaches which are denied, but in any event would have caused you no substantive prejudice and would not prevent the Court from giving judgment in favour of our client. For this reason we believe a strike out application would be bound to fail and would be an unnecessary and unreasonable application to make, increasing costs for both you and our client.

 

We appreciate that you do not have legal representation in relation to this matter and would strongly urge you to seek independent legal before proceedings with any application for strike out and/or summary judgment.

 

In the event that you continue with such an application our client will be forced to incur costs in defending it and attending a hearing. Please be aware that we will seek to recover those costs from you in the event we are successful. We anticipate our costs in defending such an application would be in the region of £2,500.

 

Yours faithfully,

 

 

 

Any thoughts anyone?

 

 

 

I will get my Strike out application to the Court on Monday when I have a day off work.

[citizenB]

What reasons did you give for your objection of the stay ?

 

I think you need to decide whether you wish to go ahead with the strike out application. This will cost you £75.00.

 

I would like for others to have a look at what Eversheds have written to you.. perhaps diddydicky and andyorch.

[citizenB]

This is what you would be using for a strike out application. Looks like I got the price wrong though it seems as though the cost is £40.00, not £75.00 as I said.

 

- I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

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

 

THe user should submit a defence based on the same argument but then ask for a strike out with the AQ. That way, there is no need to make an application and shell out £40.

------------

 

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 Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Claimant's statement of case discloses no reasonable grounds for bringing the claim.

 

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.

[citizenB]

I believe diddydicky is going to do this as well.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/229178-nationwide-next-step.html

 

[Docman]

It would be tempting to relate the Three Little Pigs nursey rhyme to Eversheds- the Big Bad Wolf - and remind them that you are the little piggie in the house built of brick.

 

If I recall StL, you are defending a claim from Nationwide where the agreement does not have any prescribed terms, there is only a template DN from Nationwide which gives a bald 14 days to comply, and is being heard in the Small Claims track.

 

The cases in the Mercantile court relate to issues arising from S78 of the Act which is about the suplying of copy CCAs. The test cases are not about S87 and Default Notices. You might like to suggest to them that as Nationwide have not supplied a valid enforceable CCA or a valid DN and that these are requirments of the Act, not mere technicalities, they might like to stop wasting the court's time and Discontinue. And also remind them that costs do not apply in the Small Claims cases.

 

I had lots of trouble with Eversheds earlier this year with lots of threats, especially about costs. But once the District Judge ordered them to produce the CCA and DN, they folded within a week - and paid my costs. They are playing the game of who blinks first!

[diddydicky]

they certainly are you should write to the court and especially ask the claimant to inform the court of which cases being heard in the mercantile court is the court intending to rule on the item 5/ in their list (the inclusion of the PT's on the signature document and when parliament gave the courts permission to change the law rather than uphold it

 

as Docman says they are playing silly beggars,

 

my letter is totally different and states the reasons for the 2 month stay as in order to review the case and explore settlement possibilites, it THEN goes on to say the stay would also be useful etc etc

 

further if they have not complied with s78 and/or CPR31.14 in order that you can see the agreement yourself - they would i think find it hard to convince the judge that you should pay their costs if they suddenly produce in court what they did not poduce before

 

also this business of photo quality copies of agreements is totally bogus

 

nowhere in the act does it say they HAVE to provide a photocopy- but what they do provide must be virtually a verbatim reproducting of the original agreement and terms and conditions

 

of COURSE they cannot reproduce the signatures and signature boxes evne though common sense says a photocopier would.....

 

in my case they have sent the application form with both signatures on it so it MUST have been photocopied and their arguments that 5 weeks after starting proceedings they are still "searching for the original agreement" is going to drop them right in the doo doo

 

their fanciful claims that DN's with insufficient time and claiming the full balance of the account in order to rectify a breach are merely de minimus and have not prejudiced the debtor is a joke@

 

further if the intention of the DN is to get the debtor to remedy a default (usually arrears) and then the account returns to a status of the default never having occurred- how would that be possible if the debtor has just had to pay the full balance of the account in order to remedy the default

 

If there is no properly executed agreement- how can there be a default of an agreement that does not legally exist.?

 

hopefully i will have my application for strike out sorted by mon/tues

 

also the amount of charges they quote to defend is being used as a Threat- so i see no reason why fire cannot be fought with fire by telling them that this is fine- their costs if you lose can join the back of the queue!

 

 

I am also going to contact one or two CFA lawyers next week as i do feel that these cases (certainly mine anyway) is so strong that they hopefully will bite my hand off to have eversheds over on charges

IMO

Edited October 31, 2009 by diddydicky

[stleonards]

Thanks for all this

 

I have been working all weekend and from 6am this morning, but now I have half a day to take up the battle again.

 

Thanks again.

[stleonards]

Hi again,

 

I couldn't afford to apply for a Strike Out in this case so I had to let it roll on, I have received a General form of judgement or order from the Court which allows the claim to be stayed.

 

It also states "Liberty to apply" in the IT IS ORDERED THAT section?

 

The letter is here;

 

http://i645.photobucket.com/albums/uu180/stleonards_2009/CourtNationwideNovember0001.jpg

 

As I now have the money should I apply for a Strike Out?

 

Thank you.

[diddydicky]

you can apply to have the claim struck out as the POC show no cause of action

 

not sure if the application has to ask for the stay to be lifted at the same time or if in this application the stay is unimportant

 

I have just written to eversheds giving them one last opportunity to withdraw, outlining the failings of the agreement and DN , failing which i will make the strike out application and apply for costs as a LIP on an indemnity basis

 

i also enclosed a copy of the BOS v Robert Mitchell case for their client's assistance and asked them to note the judges remarks as to the conduct of BOS

[stleonards]

Thanks diddydicky I am writing to Eversheds inviting them to withdraw today but I am probably going to apply for the Strike Out tomorrow anyway.

 

Thank you.

[diddydicky]

you will leapfrog me then so ill stay tuned in what court will you be in (in am in kent )

[justify]

Good luck boys!

[stleonards]

you will leapfrog me then so ill stay tuned in what court will you be in (in am in kent )

 

Sorry dd but a bit busy with a very ill husband to reply but I am in East Sussex, just down the road from you

[stleonards]

Good luck boys!

 

And girl

[citizenB]

Sorry dd but a bit busy with a very ill husband to reply but I am in East Sussex, just down the road from you

 

sorry to hear this stleonard. hope things improve soon.

[diddydicky]

Sorry dd but a bit busy with a very ill husband to reply but I am in East Sussex, just down the road from you

 

thats ok- hope he gets better soon

 

keep us updated/dont forget to post if you want any help