Nationwide- Next Step? / DISCONTINUED

diddydicky · October 29, 2009

Ok, i received summons on 25 September, through bulk centre POC mentions CCA and Default Notice (none of which obviously enclosed)

I CPR'd them on 29th sept and put in the holding defence and the case is now transferred to local court

Original Solicitors (Drydens) ignored CPR request and follow up letter and so have new solicitors (Eversheds) sent on 19th October

was just preparing an application in this respect when got the letter below from eversheds

I do have what they sent in response to CCA and what drydens have confirmed is a true copy of the original CCA (single sided application form- no TC's an NO PT's)

My DN is short on time AND demands the full balance which i have outlined and sent a copy of to them and invited them to withdraw

have not lodged the application yet in view of this letter as although they deny that they need to comply with 31.14 at the end of the letter they then say they will

contradicting themselves they say that have already supplied a signed copy of the "signature page" of the CCA yet on the other hand state in the letter that they are "still looking for it" !!

it is my opinion that what they sent me in response to cca s78 is not necessarily what they will use to support their claim- especially as they now refer to what they originally said was a true copy on an executed agreement and now conveniently state is just the "signature page" of an executed agreement!!

their dismissive tone towards the DN is also almost breathtaking

what do others feel- should i press on with the application to comply with the 31.14?

I would LIKE to use the argument in the application that i think it is an abuse of process for the claimant to START an action when he is not actually in possession of the documents required to show a cause of action at the time

dick

http://i34.tinypic.com/1zo90tg.jpg

diddydicky · October 29, 2009

I am inclined to continue with the application and amend it to point out that what they have sent so far (single sided application form with no PT's) and no accompanying TC's and a clearly defective DN which unlwafully rescinded the agreement by demanding the full balance of the account are not sufficient to give a cause of action .

That the claimant has admitted sending one "part" of the executed agreement in response to s78 (the signatrue page ) but now claims that he is still trying to "find" the documents requested by CPR31.14- which seems at odds with the fact that they must have had the original agreement to hand to be able to send me a copy of the signature page

I would like to put it to the court that in asking me for a 2 month stay (which i declined) in order to see the outcome of test cases which were in no way related to the matters in this claim, was a smoke screen for the fact that they have started an action and now need the time to go looking for documents to give cause of the action so abusing the CPR

opinions would be welcome!

diddydicky · October 29, 2009

i have been thinking about this and i feel that i should continue to seek the order with a strike out clause and use the following argument to support it

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the executed agreement [2] the default notice and [3] full details of how the figure claimed has been calculated , the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and because it is averred that the claimant has commenced a vexatious action in contravention of the overriding objectives of the CPR in the full knowledge that he does not have the evidence to support a cause of action , in particular:-

Executed Credit Agreement

1/ The claimant has previously supplied in response to a CCA s78 request a single sided one page document (attached and marked XXXX/1) and accompanied by a binding declaration that this was a “true copy of an executed credit card agreement”

(attached and marked XXXXX/2)

This document is a pre contractual application form and contains no prescribed terms , and is therefore not an “executed agreement” nor can it be enforceable

No copies of any documents referred to in that alleged agreement or original terms and conditions were supplied, either at the time or since, nor was a statement of account sent as required by s78.

The claimant now states that the above document which was copied to me is in fact only a “Part” of an executed agreement (the signature page). He claims that he is still “searching “ for the original agreement of which the above was a part copy.

It is suggested that the claimant is contradicting himself, if the above document is a true copy of part of the original executed agreement then where is the rest of it? How can the claimant still be searching for the original if , as he alleges he has already produced a true copy of a part of it.

The claimant admits in a letter dated 27 October, 4 weeks after starting proceedings, that he is still searching for the documents to give a cause of action.

I suggest that this is an abuse of the Bulk processing System which was not set up to allow claimants to commence an action and then go seeking for documents to prove said cause of action .

DEFAULT NOTICE

In order to bring a legal action in the case of a regulated credit card agreement the claimant must first claim the benefits of s87 (to claim the payment of sums not yet due) by issuing a valid and effective Default Notice . The default notice must be conform to prescribed regulations in the manner in which it is set out and the information it contains

In particular and of paramount importance it must give the debtor an opportunity to remedy any alleged breach and give the debtor 14 days from the date of service of the Default Notice in which to do so. The act also states that if the alleged breach is remedied then it will be as if the breach never occurred (the agreement endures)

The claimant sent a document purporting to be a valid and effective Default Notice (attached marked XXXXXX/4) which , notwithstanding that it did not in any event allow sufficient time after service for any alleged breach to be rectified, but crucially also demanded that in order to rectify the breach I must pay the full balance of the account, in other words it gave no opportunity to remedy the alleged breach. The faults in this alleged default notice cannot either singly or together be defined as de minimus

The Consumer Credit Act gives the creditor no room for error and demands that with the financial and legal knowledge at his disposal, that they either get the documents right or suffer the consequences.

The effect of the alleged default notice above amounted to an unlawful rescission of the alleged agreement which I accepted .

The claimant later confirmed in a letter of XXXXX (enclosed and marked XXXXXXX/5) that the agreement was indeed terminated

The claimant cannot have a cause of action and in order to do so would need to first issue a valid and effective Default Notice in order to claim the benefits of s87 before he can commence legal action . The claimant can not now or ever serve such a valid or effective default Notice since no agreement endures.

That which is supplied to date by the claimant does not show a cause of action . The claimant clearly has no prospect of success and is wasting the courts time and abusing the system .

CLAIMANTS REQUEST TO STAY PROCEEDINGS

In the enclosed letter (marked XXXXXXX/6) In the paragraph marked (H) The claimant requests a 2 months stay in proceedings citing “in order to allow us time to review the files and explore settlement options between our client and yourself

The letter refers to cases referred to the mercantile court. None of the cases to be decided by the mercantile court concern unenforceable agreements, defective default notices and unlawful rescissions of agreements and consequently cannot be valid reasons for delay.

I contend that real reason for wanting to delay the proceedings is that the claimant has vexatiously or alternatively recklessly started an action and is now desperately trying to find evidence to justify it.

The request under CPR 31.14 is necessary for me to establish if the claimant has other undisclosed documents which he may seek to rely upon to prove the Particulars of his claim.

Contradictory statements

I refer to the letter from the claimants solicitor Ever sheds (marked XXXX/7) and highlight the paragraph (a) in which it claims that I have already been supplied with a copy of the “signature page” of the original executed credit agreement

I now refer to the paragraph marked (b) in the same letter which states that the claimant is “undertaking a reasonable and proportionate search for the documents requested ( Executed Credit Agreement and valid default notice)

If the claimant does not have the executed agreement on which he relies as a basis for his claim, to hand, then:_

(a) how can he previously already have sent me a true copy of part of that document ?

(b) If the copy referred to in (a) above was from some other source and the claimant is still searching for the original executed agreement then why has he commenced proceedings which rely upon that document as a basis for his claim

2/ In order that I can prepare a proper defence

Edited October 29, 2009 by diddydicky

42man · October 29, 2009

You seem to be doing fine at the moment....you might be interested to read this too....

QUOTE" - 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

(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.

diddydicky · October 29, 2009

thanks appreciated

how would i tie that in with the above which already asks for a strike out if they do not respond to 31.14 order

can it be included as an either/or option?

citizenB · October 29, 2009

thanks appreciated

how would i tie that in with the above which already asks for a strike out if they do not respond to 31.14 order

can it be included as an either/or option?

"Alternatively, the defendant requests a strike out as follows"..

something like that ?

I wonder if the Default Notice issue is the more powerful of the two arguments.

Eversheds is using the test case torequest stays in quite a few cases it would seem.

diddydicky · October 29, 2009

so, would this be the right format on which to apply for a strike out?

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

1. 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 (Monday) 8 June 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 4 working days were required to allow for 2nd Class postage. Thus the Rectify date should be 14 calendar days from (Friday) 12th June , namely (Friday ) 26 June 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been (Monday) 22nd June .*Even were the notice to have been sent 1st class post which is denied, the rectify date would still have been 12 days and not the 14 required.

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).

The arrears at the time the notice was issued were in the region of 800 pounds. The Notice demanded that I pay the full outstanding amount of the balance of the account (xxxxxxxx) in order to rectify the breach.

The defaut Notice did not contain important and prescribed text advising the debtor where to get advice, this text as follows was not in the notice

“This notice should include a copy of the current Office Of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included you should contact us to get one!

Since the statement was not included and nor was the document referred to I could not possibly know that I should “ask for one”

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

(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. and demanded a sum of money which was impossible to raise in just a few days

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 the creditor 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 more so since the claimant later confirmed in writing that the agreement was indeed terminated. 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 alleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a default notice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

Inter alia, the regulations made by the Secretary of State*related to s88*concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.*

The default notice which the claimant relies upon in his Particulars of claim is dated (Monday) 8 June 2009 and says "Action required by you”

A) payment of the balance $XXXXXXX in full

b) Return of the card, If posting, please cut it in half before sending.

Date by which action is required:-

The payment must reach your account within 14 days of the date of this default notice. (ie Monday 22 June 2009)

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 Monday 8 June 2nd class would be deemed served on Friday 12 June 2009 and 14 clear days from then is Friday 26 June 2009 Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.* Further even were the notice to have been posted 1st class the date for remedy would have been Wednesday 24th June and not Monday 22nd June as stated in the Default Notice.

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.__________________

Edited October 29, 2009 by diddydicky

diddydicky · October 29, 2009

would it be better to just apply for a strike out on the DN issue alone- thus leaving me a second bite of the cherry on the agreement itself if for some reason i did not succeed with the strike out application?

42man · October 29, 2009

You could possibly, but it is always better to have other issues (e.g the agreement)

AndyOrch · October 29, 2009

Subbing as requested DD

Regards

Andy;)

diddydicky · October 29, 2009

You could possibly, but it is always better to have other issues (e.g the agreement)

sorry, you mean list all the issues the CCA and the DN in the one application?

diddydicky · October 30, 2009

I have yet to put in the various authorities, is this about right or too long?

DRAFT STATEMENT OF FACTS

On 2nd April 2009 the defendant made a s78 request to the claimant. The s78 request requires, within 12 working days of service upon the claimant for him to provide:-

1/ A True copy of the original executed Credit Card agreement and the original terms and conditions .

2/ A copy of any other document referred to in the original agreement

3/ A statement of account

In response to the s78 request the claimant supplied a single A4 document printed one side only and made a statement saying that this document complied with his s78 obligations and was a copy of the original signed credit card agreement.

The creditor is bound by this statement by virtue of sXXX CCA

The document supplied is a pre contractual application form which, if it is to be regarded as an executed credit card agreement must contain all the prescribed terms of the agreement together with the customers signature in the signature document. The prescribed terms may not be found in, or referred to in another document

The application form contains a right to cancel and states that details of how to do so will be sent to the customer- no such information was ever received. No copy of the agreement signed by the creditor was ever sent to the customer. No terms and conditions have ever been sent by the creditor to the customer.

The application form does not comply in terms of the prescribed headings and layout of an agreement, it does not contain any s prescribed terms within the signature document

All of the terms and conditions are contained on the face of the application form itself

Wording at the foot of the document confirms that the terms and conditions being drawn to the attention of the customer are those detailed on the face of the document.

The application having been returned signed to the creditor was subsequently signed on behalf of the creditor and an account number has been hand written at the foot of the document

The document contains a declaration that this document is a credit agreement regulated by the consumer credit act 1974 and asks the signatories to sign it only if they wish to be legally bound by it’s terms. The signatories by inference also agree to the regulations contained in the consumer credit act 1974 which regulate the agreement

The creditor is therefore bound by his signature to this agreement and by his later binding statement that this is a copy of the original credit card agreement.

The creditor does not use the word “true” in his confirmation but nevertheless confirms that he has complied with the s78 request which indeed obliges him to provide a True copy.

The creditor therefore relies upon this agreement as giving a cause of action for his legal claim against the defendant

The claimant has, since 22nd April 2009 been in continuous default of his s78 obligations in that no statement of account has been supplied

If the claimant is to now produce or refer to any other terms and conditions other than those contained on the front of this application form then he will be in further breach of his s78 obligations by not supplying them before

If the claimant now attempts to claim that the document he supplied in response to the s78 request is merely a copy and attempts to produce some other document or parts of an original executed agreement then again he places himself further in default of his s78 obligations since that which he did supply would not have been a “true” copy.

Further he would have breached the CCA by making a false statement in respect to s78 by which he was bound.

The alleged agreement which is not in the prescribed format does not contain the prescribed terms within the signature document and is therefore not an executed agreement., It cannot be the basis of a legal action. Further it would be defeated by s127(3) which states that such a document cannot be legally enforced by a court.

The document clearly states at 1b - If my application is accepted you will issue a card to me etc………. it is clearly a pre contractual application form andy by virtue of sXXXXXX cannot bind the defendant to a future agreement.

The creditor did not sign the agreement until a week later and therefore clearly made a decision as to whether to enter into an agreement with the customer at a “future” date.

The account number on the application form is XXXXXXXXXX

The customers account number stated in subsequent statements and in the default notice is

XXXXXXXXX

THE DEFAULT NOTICE

Contains a different account number to that on the agreement.

Is dated (Monday) 8 June 2009 and gives the defendant 14 days from this date to rectify an alleged breach I.e.: to Monday 22nd June 2009

The CCA requires the creditor to give the debtor 14 clear days from date of service (not date of issue of the default notice)

By first class post this would give the debtor to Wednesday 24 June

By second class post this would give the debtor to Friday 26 June

The default notice was received by the debtor on Friday 12 June which relates to a 2nd class delivery

The defendant denies the claim in the POC that the notice was served on 9th June and puts the claimant to strict proof of posting.

It is clear that even were the notice to have been sent first class the claimant failed to allow sufficient time to remedy any alleged default.

The amount of arrears owing at the time of the issue of the default notice was in the region of 800 pounds The defendant had only stopped paying the payments in april 2009 subsequent to the claimants failure to comply with s78.

The claimant demanded a sum of XX,XXX, being the amount of the account in full, in order to remedy the alleged breach.

In any event the sum claimed would be grossly incorrect since it contains charges and interest which the creditor was prevented from applying to the account whilst he was in default of his s78 obligations

The claimant was not allowed to claim money not yet due (the balance of the account) unless and until he had served a valid and effective default notice giving the debtor the opportunity to remedy any arrears and return the account to the status quo.

The claimants demand in the Default Notice was a an unlawful rescission of the agreement and upon the defendants acceptance of the unlawful rescission terminated the agreement so that it no longer endured.

The default notice was missing important and prescribed text giving advice to the debtor as to where he could access help and advice in the matter

The act is strict on the issue of an effective Default Notice and offers no leeway to the creditor to make mistakes

None of the foregoing either singly or combined can be regarded as de minimus issues and the default notice is fatally flawed

Notwithstanding that the credit agreement is not executed and not capable of enforcement, and not withstanding that the creditor is not able to claim the benefits of s87 by virtue of his failure to issue a valid or effective default notice he subsequently has no cause of action since he cannot claim moneys not yet due until he has complied with the regulations with regard to default notices

The creditor however cannot now, or ever do so since he has terminated the agreement.

To issue a further default notice would perpetuate the fiction that the agreement endures.

The agreement having been terminated cannot be resurrected unilaterally by one party.

The claimant issued his claim on 25th September in Northampton bulk centre .

The bulk centre provides the facility for the claimant not to have to submit the documents referred to in his POC with the POC. This is an administrative concession. It is not the purpose of the bulk centre to permit a claimant to issue a claim without being in possession of the evidence to show cause of a claim (in this case an original executed agreement, default notice and details of how the total of the amount claimed has been arrived at.) Yet it would seem that the claimant has abused the court process and 5 weeks after making the claim is still “searching for the evidence to support it

The claimant concedes that I am already in possession of the default notice that his POC relies upon (and which is defective)

The claimant now claims that the document supplied on April 21st in response to the s78 request is the “signature page” of the executed agreement, implying that the whole executed agreement was not supplied.

The claimant claims he is still searching for the original agreement, The claimant must have had possession of the original agreement on 21 April if he was able as he states “ to provide to me a copy of the “signature page” of that document

The claimant is unable to show 4 weeks after being requested to do so how the amount claimed has been arrived at and is still also allegedly searching for this information.

This information must have been to hand at the time that the summons was prepared.

I respectfully suggest that the conduct of the claimant in this matter has been far from acceptable.

The claimant clearly has no basis on which to bring a claim and no reasonable prospect whatsoever of making a valid claim or obtaining enforcement of the alleged agreement and I request that the court strike out the claimants claim.

Edited October 30, 2009 by diddydicky

citizenB · October 30, 2009

It looks ok to me:D

johnerog · October 30, 2009

It looks ok to me:D

Just an idea citB.

Isn't didy entitled to a copy of anything the opposition mention in their claim?

I have only scanned this and I see that it is mentioned in 'contradictory statements' but if they mention two diferent types of agreement why not ask for copies of both under 31.14. There response may be interesting and may come in handy later.

looking good didy!!

diddydicky · October 30, 2009

thanks Citb

johenrog - there are not two agreements- just the sols who have realised that the single sided single sheet previously sent by the creditor is not enforceable

so they tried to be clever and referred to it as the "signature page" of the agreement to give the impression there is more

the problem for them is that if they admit that there is more then they also admit that the full executed agreement was never sent in the first place therefore still in breach of s78

they also then admit that the (binding) statement they made in respect to what they sent in response to s78 was an untruth

either way they have p****ed on their own chips

or, as my grandad used to say " too clever by half!!

johnerog · October 31, 2009

Excellent!! I hope they enjoy their deep fried potato's with wine vinegar.

diddydicky · November 6, 2009

OK this is the application to strike out based on defective agreement and DN

anyone got any comments?

IN THE XXXXX COUNTY COURT CASE No XXXXXX

BETWEEN:-

NATIONWIDE BUILDING SOCIETY (XXXXXX)*

AND

XXXXXXXXXX*

APPLICATION TO STRIKE OUT

CLAIMANT’S CLAIM

_________________________ _____

1. This application is made in accordance with the*Civil Procedure*Rules, Part 3.4 on the basis that the plaintiff’s claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:*

2 A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

3. In this case, the claimant maintains that because of the construction of documents produced by the claimant and upon which their case relies, namely, a Consumer Credit Agreement purportedly signed by the Defendant , (attached and exhibited XXX/1) and a default notice (attached and exhibited XXX/3) must fail at law and it is appropriate that their case be struck out without a trial.

4. The claimant’s Letter of XXXXXX 2009 (attached marked and exhibited XXX/2) makes a binding statement (under s78) that the single sided document referred to above (XXX/1) is a true copy of the original credit card agreement between the parties . The defendant claims that this cannot be valid at law for the following reasons:

(a) The Agreement provided by the claimant in support of his claim is legally unenforceable as it is a pre contractual application form and does not contain the required information (“the prescribed terms” )under Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) (“the regulations”) which are required under sections 61(1)(a) and 127(3) as it then was, of the Act, which apply to agreements executed prior to 6th April 2007 within the signature document Specifically lacking are all of the prescribed terms which are:*

information as to the amount of credit (para. 3 of the regulations)

information as to the*interest*rate (para. 4 of the regulations)

information as to the repayment terms (para. 5 of the regulations)

(b) Further, section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations and the case law relied upon (see (f) below) make it clear that the required information must be included in the same signature document and not merely referred to or be found in another document. Any reference to the “Terms and Conditions” attached in a separate document is of no legal effect for the purposes of enforceability as they are not signed by the debtor.

© The agreement is “improperly executed” in accordance with section 61(1) of the Consumer Credit Act, 1974 and it does not contain “all the prescribed terms of the agreement” in accordance with section 127(3) of Act.

(d) Section 127(3) of the Consumer Credit Act 1974 was abolished by the Consumer Credit Act 2006, however Schedule 3, Part 11© of the 2006 Act states that section 127(3) of the 1974 Act remains applicable to agreements entered into prior to the commencement of the 2006 Act. The commencement date of the 2006 Act was 6th April, 2007.*

(e) The claimant has admitted that the agreement in question was entered into on XXXXX 200X. . Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question.

(f) The defendant will rely on the House of Lords case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) in applying this interpretation of the law and regulations in relation to unenforceable consumer credit agreements and this agreement.

5. The court is therefore prevented from issuing an enforcement order under the Consumer Credit Act 1974, in accordance with sections 65(1) and 127(3) as it then was, and the claimants claim must fail

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.

The claimant issued a Default Notice , which was not valid and therefore does not give rise to a cause of action, even if the agreement referred to was to have been a properly executed agreement.

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:

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

(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.

Section 88 says that the Default Notice must be in the prescribed form and the associated regulation say what that form is.* Thus, if the Default Notice 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.

6 The Default Notice issued by the claimant (attached and marked XXX/3) :-

(i) demanded payment of the full balance of the account- which included substantial sums that were not due .

Thereby claiming the benefits of s87 (monies not yet due) and denying the defendant the opportunity to rectify any alleged breach.

It is submitted that the above Default Notice which was served under s87(1) Consumer Credit Act 1974 failed to comply with the regulations In that it claims payment of X,XXX,XX ,being the full amount of the account .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).

(ii) Did not give sufficient time for the defendant to remedy the alleged breach

7. The Default notice supplied by the Claimant is dated Monday XXXX 2009. To allow service in line with the statutory requirements mentioned in points 2 & 3 below, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from XXXXXXXX,, namely Thursday XXXXXX not the 14 calendar days from the date of the letter as stated in the Default notice which would have been (2 days earlier).*

8. It is in any event denied that the Default notice , Dated XXXXX was served on XXXXX as stated in the particulars of claim, or that it was indeed sent by first class post, therefore the Claimant would be put to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach.

Under the Interpretation Act 1978 Section 7, it states:*