Clydesdale/Yuill and Kyle ordinary cause credit card debt

[mystery1]

Wednesday is the last day for making adjustments to defences/writ but we haven't heard anything since posting the defence above.

 

Do we need to do a more detailed defence or is that ok without anything from the claimant ?

 

Thanks for any help.

 

M1

[Monty2007]

Hi M1

 

Don't be surprised if they lodge adjustments at the very last minute. If they do you must ask for an extension to the adjustments so that you can respond.

[mystery1]

Will keep an eye on the post for 2 days.

 

Cheers

 

M1

 

As predicted they sent the bundle and it arrived today. Haven't read it all yet but am about to.

 

How do we request an extension ? Phone the court ?

 

Will try that and see how it goes.

 

Cheers

 

M1

 

No joy on the phone. If anyone is around would this be ok ?

 

 

I would seek an extension to the period of adjustments due to the last minute arrival of the claimants First Notice Of Adjustments for Pursuers and First Inventory Of Productions. These arrived today 3rd February which is supposed to the last day for making adjustments to the writ or defences. As a litigant in person I would like extra time to seek advice on the documents provided and make any adjustments as necessary.

 

 

 

Will have to get it to them but hopefully the will accept email or fax.

 

Cheers

 

M1

 

Well spoke to the Fife law centre who said that it would probably be accepted if i sent defence in late by 2/3 days. Spoke to a different guy at the court and it seems we need to lodge a motion which would cost £40. Will decide overnight which one to go for although motion might be best if i'm struggling for defence.

 

Anyway will put up some docs received today.

 

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clop1.jpg

 

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop2.jpg

 

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop3.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop4.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop5.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop6.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop7.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyop8.jpg

 

 

 

tbc

 

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyfip1.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyfip2.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyfip3.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyfip4.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyfip5.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/clyjs.jpg

 

They also sent the agreement, default notice and "original" terms as previously posted above as well as many statements including some after the letter from Jeremy Sutcliffe which would lead you to think the account had been terminated. There was no date of posting for the default and no method of delivery either.

 

Will try to get the updated defence ready later but any advice is welcomed in the meantime.

 

Cheers

 

M1

[Monty2007]

Hi M1

 

Yes, it would need to be a Motion but you can make this in person ("at the bar") when the case next calls before the Sheriff.

 

Their investory of productions is standard, contains all the statements which proves nothing and is worthless without a valid and enforcable agreement.

 

Did you submit an Inventory of Productions and copies of documents that you seek to rely on in court?

[mystery1]

Monty,

 

I didn't submit anything other than the defence. Is this a problem ? It was difficult for me to organise much as i didn't get the banks claim bundle until today. They had previously denied the default notice under the SAR yet it has turned up in the bundle so i wasn't sure wha to do.

 

I thought i had to wait for their reply to my defence before doing anymore.

 

Would our productions need the cca and statutory instruments etc ?

 

Cheers

 

M1

[Monty2007]

Hi M1. Any documents that you refer to need to be either in their inventory or your own. Plus you need a list of statutes, I used the following, sent the Pursuers a disk copy and a complete paper copy for the court:

• The Consumer Credit Act 1974.
  
• SI 1983/1569: Consumer Credit (Prescribed Periods for Giving
  
• Information) Regulations 1983.
  
• Data Protection Act 1998.
  
• The Consumer Credit Act 2006.
  
• The Office of Fair Trading (OFT) Debt Collection Guidelines.
  
• SI 1983/1553: Consumer Credit (Agreements) Regulations 1983.
  
• Wilson and ANR v Hurstanger Ltd - [2007] EWCA Civ 299.
  
• Wilson & Another v Secretary of State for Trade and Industry - [2003] UKHL 40
  
• Wilson v Robertson’s (London) Ltd - [2005] EWHC 1425 (Ch).
  
• SI 2004/1482: Consumer Credit (Agreements) (Amendment) Regulations 2004.
  
• SI 2004/3237: Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004.
  
• Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339.
  
• Woodchester Lease Management Services Ltd v Swain & Co - [2001] GCCR 2255.
  
• Kpohraror v Woolwich Building Society - [1996] 4 All ER 119.
  
• SI 1983/1561: Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.
  
• Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000).
  
• McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)
  
• Richard Durkin v DSG Retail Limited and HFC Bank plc, Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04).
  
• SI 1983/1557: Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.
  
• Wilson v Howard - [2005] EWCA Civ 147.
  
• Francis Bennion Quotation on CCA at; http://www.francisbennion.com
  

Edited February 4, 2010 by Monty2007

[mystery1]

Any thought before i get it to court today and post SD to sols ?

 

 

 

SHERIFFDOM OF Tayside, Central and Fife

 

Court ref. no. xxxxxxxx

 

AT Cupar Sheriff Court

 

MOTION FOR THE DEFENDER

 

in the cause

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

Pursuer

 

Against

 

Mum

at Home

 

Defender

 

The Defender moves the court to extend the period of adjustments for defences as the pursuer did not send their First Notice Of Adjustments for Pursuers and First Inventory Of Productions until February 2nd 2010 hoping it would arrive on the last morning. They did not use guaranteed mail to ensure the arrival as such. The cover letter with these documents was dated 28th January which makes it appear that this was a deliberate attempt to make it difficult for myself as a litigant in person which indeed it does. There was at least 1 item in the bundle which they had said they had “nothing on file” in response to a Subject Access Request

 

I would seek this extension in order to seek advice and respond accordingly.

 

 

 

 

Date February 4th 2010

 

Party

 

Mum

 

Defender

 

 

 

 

Thanks again.

 

M1

 

Ok had a rejig.

 

 

SHERIFFDOM OF Tayside, Central and Fife

 

Court ref. no. xxxxxx

 

AT Cupar Sheriff Court

 

MOTION FOR THE DEFENDER

 

in the cause

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

Pursuer

 

Against

 

Mum

 

 

Defender

 

The Defender moves the court to extend the period of adjustments for defences as the pursuer did not send their First Notice Of Adjustments for Pursuers and First Inventory Of Productions until February 2nd 2010 hoping it would arrive on the last morning. They did not use guaranteed mail to ensure the arrival as such. (1) The cover letter with these documents was dated 28th January (2) which makes it appear that this was a deliberate attempt to make it difficult for myself as a litigant in person which indeed it does. There was at least 1 item in the bundle (3) which they had said they had “nothing on file” (4) in response to a Subject Access Request.(5A, 5B). Another specific request was ignored although other documents on the same request were sent. (6)

 

There was also a document relating to another individual that has no relation to this case whatsoever. (7)

 

I would seek this extension in order to seek advice and respond accordingly.

 

 

 

 

List of Productions for this motion.

 

1. Photocopy of postmark on the envelope the Pursuer sent their First Notice Of Adjustments for Pursuers and First Inventory Of Productions in.

2. Cover letter from Yuill & Kyle with the First Notice Of Adjustments for Pursuers and First Inventory Of Productions.

 

3. Default notice dated 15th June 2009

 

 

4. Subject access request reply cover letter dated 29th October 2009

 

5A & 5B. Subject access request sent by the defender on 9th October

 

6. Follow up to Subject access request for further information dates 21st November 2009.

7. Erroneous inclusion by Yuill & Kyle of a document unrelated to the case or Defender.

 

 

 

 

Date February 4th 2010

 

Party

 

Mum

 

Defender

 

 

 

Will take to court today and post sd to Sols in a couple of hours unless anyone tells me i'm doing it wrong.

 

Cheers

 

M1

 

I'm off now so if it's wrong it's wrong but hopefully fixable.

 

Cheers

 

M1

 

Well in case anyone is looking in wondering how to proceed i'll update.

 

If you wish to apply for a motion in advance and pay £40 then your productions need to be listed separately and remember to sign the motion

 

Having said that it apparently will cost nothing to wait until the options hearing and motion to the bar as suggested previously by Monty. The judge might not allow the motion but he doesn't need to allow it if you pay £40 either.

 

Will concentrate on the defence and list of production over the next few days. I forgot to ask if the court would accept a disk in these green times !!

 

M1

[Monty2007]

Dear M1

 

They may well accept a disc, the Pursuers certainly should. In my case the Sheriff was very helpful and essentially gave me a tutorial on the OCR and process. He was familiar with the CCA 1974 and wanted the whole Act submitted as a paper copy with complete copies of all SI's, case precdents and any other document. This meant a full lever arch file and a mountain of paperwork. A lot of hassle but that was what he wanted. I know of other cases where they require just the relevant sections. Best ask the court.

[mystery1]

Hey Monty, I hope that judge moves to Cupar soon

 

Do you think i could defend my mum ? http://www.consumeractiongroup.co.uk/forum/legal-issues/245873-attending-court-behalf-someone.html#post2750885 Motion at the bar to find out ? Previous heart attacks asthma etc any help ?

 

Anyway,

 

I have drafted this defence by nicking a lot of your work as seen on cag but haven't included any work on the default notice. If anyone spots any errors or missed points from the claimant please shout. Thanks.

 

SHERIFFDOM OF Tayside, Central and Fife At Cupar

 

Court Ref. No. xxxxxxxx

Defence

In the cause of

 

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

PURSUER(S)

 

Against

 

Mum

 

DEFENDER

 

 

ANSWERS TO CONDESCENDENCE

2. Delete answer to condescendence 2 and substitute the following

 

“The averments regarding the defender are admitted.

The existence of jurisdiction is admitted. It is explained that these proceedings were raised at a time when the pursuer had advised that they were investigating a complaint raised 16th September 2009 to which they issued a final written response dated 23rd November which came after letters dated 14th September and 11th November stating they would be in touch ”

 

 

3. Delete answer to condescendence 3 and substitute the following.

 

“It is denied that the defender applied for a mastercard on or around October 2000. It is explained that the pursuer has sent an application form from 1997 in the First List Of Productions. The defender craves the Pursuer be put to strict proof of an agreement which complies with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

 

Under the Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

 

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) of the Act, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

 

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.

 

It is explained that the documents supplied by the Pursuer do not confirm to 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 to be compliant with Section 60(1)(a) of the Act. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable as is the judgment of TUCKEY LJ in the case of Wilson and Anor v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

“33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1)(a) of the Act, the consequences of which means it is improperly executed and only enforceable by Court order. Notwithstanding this point, the Agreement must be signed in the prescribed manner to comply with Section 61(1)(a) of the Act. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

 

I now wish to make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch).

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach…

 

Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…"

 

The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

The courts powers of enforcement where agreements are improperly executed by way of Section 65 of the Act are themselves subject to certain qualifying factors. Under Section 127(3) of the Act the requirements are laid out clearly what is required for the court to be able to enforce the agreement where Section 65(1) of the Act has not been complied with.

 

Section 127(3). The Court shall not make an enforcement order under Section 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 Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

The Courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the Agreement cannot be enforced.

 

With regards to the Authority cited above, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

“28. I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated Agreement is an Agreement between an individual Debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated Agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the Agreement must be in a prescribed form containing all the Prescribed Terms. The Prescribed Terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the Agreement is not enforceable against the Debtor save by an order of the Court: Section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under Section 65. The Court 'shall dismiss' the application if, but only if, the Court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The Court may reduce the amount payable by the Debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the Agreement or security.

 

It is also explained that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for agreements made before Section 15 came into effect. Since any agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and hence the Consumer Credit Act 1974 is the relevant act in this case.

 

The Consumer Credit Act 2006, Schedule 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

(a) The words”(subject to subsections (3) and (4))” in subsection (1) of Section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of Section 185 of that act, has no effect in relation to improperly-executed Agreements made before the commencement of Section 15 of this Act.

 

It is explained that the application form from 1997 that has been produced does not specify what the credit limit is but merely contains a request for a limit and a section for bank use only which states that a limit of £200 has been sanctioned which was not present upon the signature of the defender.

 

It is explained that there is no interest rate on the application and no reference to another document where it can be found. The defender does not recollect receiving a separate document prior to signing the application form.

 

It is explained that there is no explanation of how the defender would pay back any money due under an agreement.

 

It is explained that there is a 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. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory time 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).

 

4. 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.

 

5. 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).

 

6. 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.

 

7. 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…

 

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

 

9. 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.

 

10. 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.

 

11. 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.

 

12. 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.

 

13. 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.

 

14. 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 the 7th 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.

 

PLEAS IN LAW

1. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

 

2.The credit card application which the PURSUERS will present as evidence, does not conform in form or content to Section 61(1)(a) of the Consumer Credit Act 1974 which makes the agreement improperly executed. Section 65(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. As such it is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

.

 

3. The Accordingly, given the Pursuer’s averments are irrelevant et separatim lacking in specification, the action should be dismissed.

 

 

I confirm the above as my defence.

 

 

 

 

Thoughts please.

 

Cheers

 

M1

Edited February 5, 2010 by mystery1
Spotted a fault, added a bit

[Monty2007]

Hi M1

 

I am sure you can defend your mum, I think that she has to complete a form to appoint you to act on her behalf. Best check with the Sheriff Court clerk to check what you need to do.

 

The defence looks okay, it certainly worked for me. Ensure that you read through the legislation that you are quoting and have copies to hand when you attend court, just in case they are referred to.

[mystery1]

Thanks Monty. I hope i can represent her as it'd be difficult and awkward in court just being Mckenzie as she has no clue really.

 

The letter below came in the post this morning. Would you still suggest leaving it until the options hearing on the 17th feb and asking for a motion at the bar ? Would you suggest finishing the defence and posting to court and sols in the meantime ?

 

The mistakes in this are unreal. Our pleas have changed from section 142 to section 127 and they have said the agreement was 2000 when the application form is dated 1997. They asked for an answer to which prescribed terms were missing then gave 2 days between the first note of adjustments and sending the record to the court. I hope we get a good sheriff who can see what they are trying to do.

 

 

Cheers

 

M1

[mystery1]

Haven't updated defence yet but have made a start printing off all the acts case law etc hopefully i'll be done by Wednesday but as i'm looking for an extension to adjustments hopefully it'll be ok.

 

Spoke to the court today and there are no forms to fill in to be a "lay representative". All that is required is to inform the court when you let them know you have arrived on the day and have the defender confirm they want you to act for them.

 

Anyway they bank sent their rule 22.

 

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/ykr22.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/ykr221.jpg

http://i574.photobucket.com/albums/ss185/henrik777_photo/egg/clydesdale/ykr222.jpg

 

Although i'm going for an extension i thought it best to do likewise although it's probably not perfect.

 

SHERIFFDOM OF Tayside, Central and Fife At Cupar

 

Court Ref. No. x

 

NOTTE OF BASIS OF PRELIMINARY

PLEA FOR DEFENDANT

 

 

In the cause of

 

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

PURSUER(S)

 

Against

 

Mum

 

 

DEFENDER

 

 

 

Mum, the Defender, seeks to rely on the defenders plea numbers 1 and 2 which state :

 

 

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 61(1)(a) of the Consumer Credit Act 1974 which makes the agreement improperly executed. Section 65(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. As such it is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

 

The defender in terms of condescendence 3 aver that there was no agreement on or around October 2000. The first statement produced by the pursuer has a credit limit of £1200 and a balance carried forward thus invalidating the claims made of an agreement from that time. The defender is met with a claim which is without merit and lacking in evidence to substantiate these claims. Accordingly the pursuers claim should be dismissed and decree pronounced.

 

Yours Sincerely

 

Mum

 

 

Cheers

 

M1

 

Does anyone know where i can find copies of these please ?

 

SI 1983/1569: Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

 

Woodchester Lease Management Services Ltd v Swain & Co - [2001] GCCR 2255.

 

 

Cheers

 

M1

[IdaInFife]

no 1

The Consumer Forums - Statutes

 

no 4

 

The Consumer Forums - Cases

[mystery1]

Thanks Ida. First one i saw but wasn't 100% sure it was complete but maybe i just had square eyes at the time because it looks like it is now

 

The woodchester one i have the 1998 one but not the 2001 one which i can't find.

 

Cheers

 

M1

[IdaInFife]

2001? the case was 98

[mystery1]

Hi M1. Any documents that you refer to need to be either in their inventory or your own. Plus you need a list of statutes, I used the following, sent the Pursuers a disk copy and a complete paper copy for the court:

• The Consumer Credit Act 1974.
  
• SI 1983/1569: Consumer Credit (Prescribed Periods for Giving
  
• Information) Regulations 1983.
  
• Data Protection Act 1998.
  
• The Consumer Credit Act 2006.
  
• The Office of Fair Trading (OFT) Debt Collection Guidelines.
  
• SI 1983/1553: Consumer Credit (Agreements) Regulations 1983.
  
• Wilson and ANR v Hurstanger Ltd - [2007] EWCA Civ 299.
  
• Wilson & Another v Secretary of State for Trade and Industry - [2003] UKHL 40
  
• Wilson v Robertson’s (London) Ltd - [2005] EWHC 1425 (Ch).
  
• SI 2004/1482: Consumer Credit (Agreements) (Amendment) Regulations 2004.
  
• SI 2004/3237: Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004.
  
• Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339.
  
• Woodchester Lease Management Services Ltd v Swain & Co - [2001] GCCR 2255.
  
• Kpohraror v Woolwich Building Society - [1996] 4 All ER 119.
  
• SI 1983/1561: Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.
  
• Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000).
  
• McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)
  
• Richard Durkin v DSG Retail Limited and HFC Bank plc, Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04).
  
• SI 1983/1557: Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.
  
• Wilson v Howard - [2005] EWCA Civ 147.
  
• Francis Bennion Quotation on CCA at; http://www.francisbennion.com
  

 

Monty lists 2 different cases ?

 

Cheers

 

M1

[IdaInFife]

Ok will ask Monty

 

Ida x

[mystery1]

Well options hearing is today although i'm going for an extension to adjustments.

 

First notice of productions ready with all printing done for it. (may add to it during exension but for today this is it)

 

SHERIFFDOM OF Tayside, Central and Fife

 

Case no.

 

AT Cupar Sheriff Court

 

First inventory of productions for the defender

 

in the cause

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

Pursuer

 

Against

 

 

 

Defender

 

 

 

1. Consumer credit act 1974

2. The Consumer Credit Act 2006.

3. Data Protection Act 1998.

4. SI 1983/1553: Consumer Credit (Agreements) Regulations 1983.

5. The Banking code

6. The Office of Fair Trading (OFT) Debt Collection Guidelines.

7. SI 1983/1569: Consumer Credit (Prescribed Periods for GivingInformation) Regulations 1983.

8. SI 2004/1482: Consumer Credit (Agreements) (Amendment) Regulations 2004.

9. SI 1983/1561: Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

10. Consumer protection from unfair trading regulations 2008

11. Wilson and ANR v Hurstanger Ltd - [2007] EWCA Civ 299.

12. Wilson & Another v Secretary of State for Trade and Industry - [2003] UKHL 40

13. Wilson v Robertson’s (London) Ltd - [2005] EWHC 1425 (Ch).

14. Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339.

15. Kpohraror v Woolwich Building Society - [1996] 4 All ER 119.

16. SI 2004/3237: Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004.

17. Wilson v Howard - [2005] EWCA Civ 147.

18. Letter dated 4th September 2009 from Clydesdale

19. Account in dispute letter dated September 16th 2009

20. Letter dated 24th September 2009 from Clydesdale

21. Subject access request dated October 9th 2009

22. Letter dated 14th October from Jeremy Sutcliffe & Co

23. Letter dated 14th October 2009 from Clydesdale

24. Letter dated 14th October to Jeremy Sutcliffe & Co

25. Letter dated 11th November 2009 from Clydesdale

26. Subject access follow up dated November 21st 2009

27. Letter dated 23rd November 2009 from Clydesdale

28. Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000).

29. McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)

30. Richard Durkin v DSG Retail Limited and HFC Bank plc, Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04).

31. Francis Bennion Quotation on CCA at Francis Bennion - Home Page

 

 

Defence as posted but again i think i'll add to it after today.

 

M1

 

That was horrific.

 

Called before judge. I intended to state I'm her son and will be her lay representative. Got as far as "i'm" before the judge stated i was not a solicitor and she would have to speak for herself. She was really struggling to say that she wanted a motion to extend the adjustment period and i thought her heart had given way. It was so bad that even without completing her request the pursuer interrupted and said they had no objection.

 

Making enquiries with Fife law centre and CAB to see if the Clerks office was wrong to say it was ok or the Judge was wrong to say it wasn't. Either way a complaint will be made.

 

M1

[leedoe]

subbing

[mystery1]

Update.

 

Sent the adjustments as above. Received on the last day a minor update from them. Sent rule 22 note along with a request to allow me to be lay representative but reply came back assist only. Received rule 22.

 

Prepared mother best i could and she had some pills from doc to help heart.

 

Went to court today for 10 am. Called forward never spoke for 5 mins whilst the Sheriff asked how the pursuer was going to prove the debt. I actually started to think it was about to be dismissed but alas they said i hadn't included a rule 22 note to indicate there was no agreement and we should go to a debate. I might have argued this point but when you are advising someone who isn't sure it's best to wait than annoy the Sheriff who agreed the point.

 

The Sheriff made it clear that the Pursuer had to prove the debt and that in his opinion he couldn't really see how. Perhaps a witness to the microfiche and destruction process but he seemed to think this was unlikely.

 

Debate in June and my mother may make written submissions as long as the pursuers get a copy.

 

 

A good day that could have been a great day with the correct rule 22. Still after 1st options hearing confidence is markedly higher with the case/Sheriff but even moreso with my mothers ability to see it through.

 

M1

[Monty2007]

Hi M1

 

You are close to the end game. It is unlikely to get to debate since they will lose without an enforceable agreement, the Sheriff has essentially told them so. Be prepared for a settlement offer...........

[mystery1]

Cheers Monty. It does appear to be close to the end so i better get my calculator out for expenses. I wonder if i can get a donation for cag as legal advice ? I'm thinking of asking for at least £500 for that although confidence in that happening is low.

 

To hear the judge asking for proof of agreement and not microfiche tat is very helpful for an agreement of mine i was unsure of.

 

The best news is that i'm going to prep my mum for claiming back thousands of bank charges now she has shown she can make it through court.

 

Cheers M1

[mystery1]

A bit of a surprise through the post today. This came from Yuill and Kyle although the writing on the envelope makes it look like it's from Cupar Sheriff court. I think the court needs to see this.

 

 

Also included were an copies of an "access booklet" and the same t&c's as before.

 

Wanted to post these up for any help as i will be looking more thoroughly later myself and also getting my mother to confirm with the court that this has been lodged with them.

 

Cheers

 

M1

[teaboy2]

Ok so they admit that the terms and conditions where contained within a booklet in which the application form was attached to when signed. Last time i checked a booklet with a seperate piece of paper for an application form, where 2 different documents!

 

So how on earth can they argue that the terms and conditions where on the the reverse of the application and therefore within the same four corners of paper, when the terms where in a booklet that was simply attached to the application form? Its impossible.

 

Mystery was this a result of bank charges making you overdrawn?

[mystery1]

Teaboy, this is a credit card and is my mums.

 

My initial thoughts are to oppose the motion. They waited until the last day twice during adjustments and had plenty of notice and time to adjust their claim after receiving the current defence.

 

They also have flaws in their argument. The credit limit was sanctioned at £200 according to the application form. The alleged t&c's say they are for a minimum of £500 and now they say oh well we actually agreed on a credit limit of £800. Of course they have supplied no prove.

 

"the pursuer no longer holds the principal agreement" Shame.

 

They did not supply original t&c's for the s78 request.

 

I'm still looking at the rest of it.

 

Cheers

 

M1