advice please

[rnk]

bump

[letitbeme]

Hi there rnk,

Was Court Order an unless order i.e. if the claimant doesn’t supply the documents the claim is struck out without further order.

[letitbeme]

OK, when you go to court point out to the Judge the discrepancies with the supplied documents.

 

1, The NOA is a none starter i.e. Not issued by the Assignee / Assignor

2, The CCA is none compliant with the consumer credit act and is therefore unenforceable.

 

3, Ask the court to strike out the claim because as things stand the claim is unenforceable.

 

If the Judge dose not agree then do the following.

 

Submit a N244 form requesting the court issue a new court order (see outlined below) This will cost you £75. But should see off this claim.

 

 

 

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

Draft Order

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Clear Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Copies of Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

Hope this helps

LIBM

[rnk]

thanks, let it be me.

 

it is not an unless order.

 

 

[rnk]

Could anyone advise me please?. i go in for another hearing this week. at the first hearing the judge ordered capquest to provide the agreement and the noa. it was not an unless order. what i recd from capquest was the application form and the noa is apparently also not valid.

 

so should i be writing a defence?. and do i post it before hand or take it in when i go.

 

also in the witness stment the legal beagel for the claimanat states"The defendant states in her defence that she requested a copy of the agreement, however due to the age of the agreement a copy is no longer held". so how did they produce a supposed agreement later?. what do i say for that?

 

also the debt includes penalty charges. can i mention that as well?.

 

and what are the stipulations for a valid default notice. capquest is taking me to courts but never issued a default notice. the only default notice i received was from mbna. not sure whether that is valid either.

 

advice any one

[middenmess]

In an earlier post about the D/N you wrote...

 

''The date on the default notice is the 8/6/09. And it reads "on or after the date shown, your account will be closed and your credit agreement will be terminated".There is no date specification here. However on the top it states

"This statutory notice is to tell you that in order to remedy this breach, you must pay the full amount of your outstanding balance which is xxx by 25/6/09."

 

I thought that they could only request the arrears to rectify the D/N and that demanding the whole sum effectively terminates the account and makes the D/N invalid.

 

Datewise if posted 1st class it would appear OK but not if send by 2nd class

 

Am I interpreting this D/N incorrectly?

[rnk]

Hi again,

 

Can someone please confirm whether capquest need to issued a default notice before they can take me to courts. I never recd one from them.I only recd one from mbna the original creditor.

 

My other question is re the noa. Since the noa should either originate from the assignor or theassignee and my noa did not originate from either which law do i quote for this please?.

 

Thanks.

[rnk]

bump...

[rnk]

Looking at the dn recd from mbna it is dated 8.6.09. In the witness statement cl finance state that "on 30 may 2009 pursuant to sec 87 (1) of the consumer credit act 1974 a default notice ws served upon the defendant". If it was I never received it.

 

when i looked closely at the dn from lewis debt recovery it seems that assignment is dated 19th of june 2009.

 

So cl finance issued the supposed dn on the 30th may and the assignment was on the 19th of june. which means they issued a default before they became the owner of the debt?.

 

please let me know which law this contavenes.

 

thanks.

[middenmess]

Just read the section dealing with Default notices in the CCA,1974 and amendments.

There is also a very good thread about default notices here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

and there are many others.

[DonkeyB]

Looking at the dn recd from mbna it is dated 8.6.09. In the witness statement cl finance state that "on 30 may 2009 pursuant to sec 87 (1) of the consumer credit act 1974 a default notice ws served upon the defendant". If it was I never received it.

 

when i looked closely at the dn from lewis debt recovery it seems that assignment is dated 19th of june 2009.

 

So cl finance issued the supposed dn on the 30th may and the assignment was on the 19th of june. which means they issued a default before they became the owner of the debt?.

 

please let me know which law this contavenes.

 

thanks.

 

Complex... the DN from MBNA was dated 8 June 2009. I think you should accept this. Because if the account was terminated and sold by 19 June, you have not been allowed at least 14+3 days to rectify, therefore the agreement was unlawfully rescinded.

 

Are CL Finance saying that they themselves issued a DN on 30 May? If so, accept their evidence, at it clearly shows they did not own the debt until 19 June. Therefore they have lied, and their witness statement should be struck out.

 

Either way, they have severley f*cked up here.

[middenmess]

This post is by 42man on this thread..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/204167-alliance-leicester-unsecured-loan.html

 

This should help you.....(dig out some bits from this)

 

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 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.

[rnk]

An update,

 

Been to courts for the directions hearing. The courts and I only received the first page of the supposed agreement. However the solicitor for howard cohen had the whole agreement it would seem. The judge was none too pleased.

 

My case has now been directed to the small claims track and hearing is for March next year.

 

I need all the help i can get to prepare my defence statement.

 

My worries are: As howard cohen are taking it this far may be they are fairly confident of winning.

if the solicitor had the whole agreement does that mean I am liable to pay.

What i mean by that is just not the application but all the terms attached as well.it did seem though that the ageement was a photocopy. Should they not produce the original at the hearing?

 

I shall create a time line and then hopefully someone can tell me what i should be doing.

[letitbeme]

Hi there

OK, do you now have a copy (readable) of the CCA + terms and conditions,

And has any of the CAG team assessed the enforceability of the CCA?

LIBM

[DonkeyB]

The bits of paper he had could have been anything. Did he provide you with a copy? If so, post it up - it has been presented to the court so if we discredit it, they are stuffed.

[rnk]

I dont think the judge saw the papers either.

 

what i have recd from courts is the followiing:

allocated to small claims track and should take no longer than an hour.

the parties shall send to the court and each other not later than 14 days prior to hearing !. written statements of the evidence of themselves and of any other witness

2. copies of any documents which they propose to rely on at the hearing. it is of the utmost importance that the parties do comply with this direction.

 

So do i wait for howard cohen to produce the papers whatever it is.

 

When i requested info under the cca from mbna the oc this is what they had to say after sending the supposed agreement

 

"For the avoidance of any doubt, all of the necessary and prescribed terms were included in the copy of the credit agreements we provided you with and is sufficient for the purposes of the consumer credit act.

 

To be clear, we are not required to provide a photocopy of the origial agreement we are required to provide a copy in the form as permitted by law. That was what we sent to you."

 

What i think the solicitor had in his hand was the rest of the supposed agreement and which they seem to think conforms to the law.

[DonkeyB]

Yes, to comply with a s78 request they can provide a 'true copy' - but to enforce in court, they must produce the original agreement. And it MUST have the prescribed terms and proper references to any T&Cs.

 

I think a letter that demands a copy of what the solicitor had in court is required - don't mince your words. Shame you didn't ask to see it in court. I thought the judge would have asked to see it - could have been his expenses claim for all you know!

[letitbeme]

Hi,

What documents do you have in your possesion?

[letitbeme]

Do you have the following:-

 

1. A clear and readable copy of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

 

2. A copy of the Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

3. A copy of the Notice of Assignment compliant with Section 136 (1) of the Law of Property Act 1925. Issued by MBNA (Assignor).

 

4. A copy of the Royal Mail proof of service of the Notice of Assignment compliant with Section 196 (4) of the Law of Property Act 1925. Issued by MBNA (Assignor).

 

5. Document, contract or deed of assignment.

 

6. Copies of all account statements and any other documents relied upon.

 

7. A full breakdown of the total amount claimed, a detailed list of how this total was calculated including all charges added.

 

8. Copies of all correspondence concerning the agreement from the date it came into force .

[rnk]

Re: Documents i have in hand in relation to the claim

 

In post #34 is the supposed agreement and post #31 the second attachement is the noa. I shall upload the default notice recd from mbna soon so that someone can check whether it is a valid noa as well.

 

as this account was originally with mbna, but the claim is by capquest, at which poiint do i start scrutinising the documents?. i suppose the best starting point is the default notice from mbna as it was soon after that capquest came into the act.

[letitbeme]

Quick question, the debt originated with MBNA. Could you list who the debt was sold to, and from who?

[letitbeme]

Also, if you could do a brief synopsis from day one, as things stand on your thread it appears a little fragmented. I just need to clarify a few points so that I can guide you to a winning position

[rnk]

Also, if you could do a brief synopsis from day one, as things stand on your thread it appears a little fragmented. I just need to clarify a few points so that I can guide you to a winning position

 

Thanks lbm,

 

this is a time line of the history of this account.

 

Nov 1993 approx account opened with originally acca bank of scotland

 

Payments made regularly to this account and charges also made by the bank for late payments, over limit etc.

 

account gradually taken over by mbna

 

Sep 2008 I write to ask for reduced payments as I cannot afford the monthly minimum payments.

 

Sep 2008 mbna replied to phone and offered me a loan instead, I declined.

 

25.9.2008 I sent a CCA request to mbna

 

Oct 2008 CCA reminder request sent to mbna.

 

31.10.2008- I received the current terms and conditions from mbna

 

Nov 2008- Aegis wrote requesting payment on behalf of mbna

 

14.11.2008- Recd letter from mbna that they had compliied with the cca request.

 

21.11.2008- I sent a default notice under the CCa to mbna.

 

May 2009- I receive default threat letter from mbna.

 

May 2009- I sent a reduced settlement offer letter to mbna.

 

June 2009 sent CCA letter sent to capquest.

 

June 2009- default notice served on me by mbna

 

2.7.2009- NOA on behalf of cl finance sent by lewis debt recovery.

 

20.7.2009- Claim issued by howard cohen on behalf of cl finance

 

30.7.2009- CPR sent to howard cohen

 

31.7.2009- Howard cohen reply to say they are not obliged to provide information as requested under the cpr.

 

5.8.2009- Reminder cpr sent to howard cohen.

 

the judge has after the allocation hearing has decided on a small claims track.

 

The particulars of claim for howard cohen states " the claimant's claim is for the sum of £xxx being monies due from the defendant to the claiimant under a regulated credit agreement between the defendant and mbna under reference xxxx and assigned to the claimant on the 19th of June 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 the defendant pursuant to sec 87(1) of the Consument Credit Act 1974."

 

To this date I still have not seen the whole agreement. what I did receive has already been uploaded.

 

All advie greatly appreciated.

 

Thanks.

[rnk]

I have to add that this is a bit complicated as I have 2 accounts one originated with bank of scotland and mbna took over which is the one with which i am going to courts. The other account originated with abbey and mbna then took over. I wrote re both accounts to mbna and sent a SAR request to mbna as well in Jan 2009.

 

Mbna replied that due to archive problemts they couldnt locate the original agreement for the abbey account. But sent an agreement for the mbna (the account going to courts with). On scrutinising the supposed terms and conditions it states that the charge for each late payment etc is £12.00. and the £12.00 charge only came into effect recently.

 

So I am wondering whether howard cohen are attaching the new cca presribed terms with the supposed written agreement and hopiing no one would find out.

 

Hope what i am saying is making sense. please do ask if you have any queries. cos i really want to fight this and win it, cos I know howard cohen think we will back down.

[middenmess]

bump