Nationwide- Next Step? / **DISCONTINUED**

[captain crunk]

Dear DD -folowing with interest - I'm due to submit evidence - my deadline for defence is Nov25th - now - I'm not so clear if I should be doing as you have done and apply for a strike out (that's an Applic is it?)rather than look to defend (which is my position at the moment as I'm unsure) I don't have the benefit of the post dates thing but I do have the DN asking for the whole amount without reasonable remedy stuff(I posted this on my thread)Is that sufficient?. Also the CCA they provided when first asked is one sided and does not contain the paragraph '8f' that they are using to justify getting the whole amount - any advice gratefully percieved =CC

[diddydicky]

if your case is proceeding you would normally make the strike out application with the AQ's if you are past this stage might as well defend,using the same arguments

 

i assume that the arrears did not come to the whole outstanding balance in which case the DN is fatally flawed since it seeks the benefits s of s87 before issuing an effective dn

 

how can you remedy the alleged default and carry on as though the default had not occurred if, by demanding the full balance in the DN they have effectively unlawfully rescinded the agreement

 

 

i dont see any reason why your defence cannot include draft directions to strike out but at this stage you probably need some of the legal bods input

 

hit the triangle if you want the site team help -you only have 9 days left

[diddydicky]

well, well , well, blow me down with a feather

 

write to them on Thusday that i intend to remove the stay and seek a strike out and lo and behold in a letter dated yesterday from eversheds and they advise me that they have written to the court confirming that they intend to continue with the action

 

cor, co incidence or what!

[diddydicky]

this is a copy of my letter to them, and i enclosed a copy of the BOS v Robert Mitchell to focus their minds,

 

i must have done so for they want to proceed- this should be interesting.

 

Per Fax to 0845 497 1900 and by Post

 

Dear Sirs,

 

Your Ref XXXXXXXX Nationwide Building Society Claim No XXXXXXx

 

I write on behalf of my wife Mrs XXXXXx and . I refer to your letter of XXXXXXX, and note the contents. .

 

I refer to the three documents mentioned in your clients Particulars of Claim. and the CPR R31.14 request..

 

You have confirmed that the signed pre contractual application form that was sent by your client in response to a s78 request is the “agreement” referred to and relied upon in your clients Particulars of Claim.

 

Your client has confirmed in a binding statement that this document is a True copy of the original executed agreement. .

 

This document cannot be a “re creation” since it contains signatures therefore your client must have the original document in his possession already in order to have been able to make a “true” copy it..

 

You have confirmed that the Default Notice referred to in your clients Particulars of Claim is the one that I have sent a hard copy of to you

 

Unless a figure was “plucked out of thin air”, Your client must have in his possession the precise details of how the figure in the particulars of Claim as being due and payable was arrived at when the claim form was completed in September.

 

 

 

 

 

 

 

- 2 -

 

In view of the foregoing I fail to understand the statement in your letter that your client is “currently undertaking a reasonable and proportionate search for the documents and information you have requested

 

What documents it is that your client is searching for, two months after commencing legal proceedings.? Is your client intending to produce document in support of his action other than those referred to above and in your letter of 27 October.?

 

Notwithstanding the foregoing it is plainly obvious that the signed pre contractual application form, totally devoid of any prescribed terms, is not a properly executed credit card agreement and that it cannot give a cause of action. It is also patently obvious that a court would be prevented in any event from enforcing this document as an agreement by virtue of s127 (3).

 

It is also clear, that the “Default Notice” is fatally flawed in several important respects none of which could possibly be regarded as “de minimus”

 

Your client was and is not entitled to claim the benefits of s87 which includes “sums not yet due” and therefore has no cause of action for the sum mentioned in its claim.

 

Your proposition that the default notice which effectively amounted to an unlawful rescission of the agreement has not been prejudicial to the defendant is frankly nonsense.

 

The SAR discloses discrepancies in your clients particulars of claim which claim that the default notice was sent first class and that it was “served “ on the defendant on 9th June. It is noted that in 13 pages of communications logs this is the ONLY entry that is not chronologically in order and was for some reason entered onto the system over 13 days after the event and despite other entries having been made on the logs in the meantime.

 

In conclusion, It seems to me that it would be blindingly obvious to even the wettest of wet behind the ears first year law student that your client’s case is totally hopeless in all respects and that to continue would be to invite the suggestion that your client is being vexatious and is in gross abuse of process.

 

I therefore invite your client to withdraw their claim with no costs in this matter, and confirm this within 10 days of the date of this letter, failing which an application will be made to strike out your clients claim and a claim made for costs as a litigant In

 

Person on an indemnity basis.

 

Your client might find the judges remarks contained in the attached. BOS v Robert Mitchell useful.

 

I would appreciate it if any further communication contained the name of the author of the letter as a point of reference within your company

 

 

Yours sincerely

 

 

Diddydicky.

[middenmess]

It seems to me that it would be blindingly obvious to even the wettest of wet behind the ears first year law student that your client’s case is totally hopeless in all respects and that to continue would be to invite the suggestion that your client is being vexatious and is in gross abuse of process.

 

 

[diddydicky]

i know i know, it just creeps in!!

[tpedge]

In a similar boat, subscribing with interest. Good luck!

[johnerog]

any news DD?

[diddydicky]

cpr 31.14 to nationwide but no response- they have applied to lift the stay so waiting for aq's, put in holding defence and although i already have the cca and DN cant finalise defence until they supply the figures for the amount claimed- will ask for an order to produce with AQ

[diddydicky]

sorry, the present situation is that they have still not provided the details for the amount claimed so my holding defence remains on file

 

not sure how long i should wait for the AQ's to come out before i chase the court?

 

its around 2 /3 weeks ago now since they applied to lift the stay

[johnerog]

sorry, the present situation is that they have still not provided the details for the amount claimed so my holding defence remains on file

 

not sure how long i should wait for the AQ's to come out before i chase the court?

 

its around 2 /3 weeks ago now since they applied to lift the stay

 

Still supporting

[hatesdebt]

Any news?

[diddydicky]

waiting for AQ's thinking of sending them a skeletal argument for a stikle out and inviting them to withdraw without costs

 

along these lines

 

Draft Skeletal Argument Application to strike out claimants claim-

 

CPR4.2 Construction of Documents

 

The application concerns the construction of two documents either of which it is averred are sufficient allow the court to strike out the claim under CPR4.2

 

The “Agreement”- being a credit card agreement regulated by the consumer credit act 1974 (the act) and being an agreement entered into prior to April 2007 therefore being subject to the provisions of s127 (3)

 

The Default Notice

 

I start with the default notice on the basis that if the court finds my arguments in this respect persuasive then there is no need to waste the courts time dealing with the construction of the Agreement.

 

In order to claim the benefits of s87 of the act, namely to terminate or to demand payment of sums not yet due, the creditor must first serve a valid default notice.

 

The regulations in respect of default notices are necessarily strict as this is a statutory document and offers little if any room for error on the part of the creditor.

 

In simple terms the creditor may not claim the benefits of s87 if the default notice is defective

 

The defendant has never denied entering into an agreement with the claimant but denies that the agreement entered into is properly executed and/or legally enforceable.

 

The account had been conducted satisfactorily by the defendant since its inception in 2003 and the arrears were solely as a result of the claimants continued failure to comply with a s78 request made in April 2009 for a copy of the an executed credit card agreement.

 

In June 2009 and at a time when approximately 700 pounds was outstanding in arrears on the account the claimant served a default notice the defendant

 

The default notice was defective in three respects:-

 

 

1/ It did not give sufficient time for the defendant to remedy the alleged defect

 

2/ It failed to comply with the regulations in way it was set out

 

3/ The amount the notice claimed in order to remedy an alleged default if arrears outstanding in the agreement was overstated by 9000 pounds

 

1/ Did not give sufficient time to remedy the alleged default

 

The regulations require that the default notice gives 14 clear days after the date of service for the debtor to remedy the alleged defect

 

The default notice is dated (Monday) 8 June 2009

 

The claimant claims it was posted 1st class and was served on 9 June

 

The arguments above are irrelevant to this argument insofar as the following will show that the claimants Default Notice was incapable from the outset of complying with the regulations in this respect-

 

The regulations state that service is deemed 2 working days after the day of posting if sent 1st class and 4 days if posted 2nd class.

 

It has been held elsewhere that the use of non Royal Mail postal service is deemed equivalent of royal mail 2nd class due to the delay in such mail being collected and entered into the royal mail postal system.

 

Whilst it would be possible for the client to make an affidavit to the effect that the notice was posted first class on the same date as the date of the notice, it is averred that he cannot claim to know the date of service of the notice on the defendant since the letter was not a “signed for “ or recorded delivery item

 

The claimant wrongly asserts that “service” occurs at the time the notice is posted.

 

Even were the notice to have been posted on the day it was dated service would be deemed to be Wednesday 10 June and the 14 clear days would commence 11 June which gives a remedy date of 24 June

 

The claimant’s default notice demanded that the default be remedied “within 14 days from the date of the default notice” thus the creditors remedy date is 22nd June giving only 12 days

 

The defendant claims that the notice was delivered by post to her on Friday 12 June -and that this is commensurate with 2nd class posting. The defendant claims that the remedy date should have been 14 days from 13th June which would be 26 June

 

 

2/ failed to comply with the regulations in the way it was set out and worded

 

 

The regulations state that the default notice must state a date by which the alleged default is to be remedied , this being a date not less than 14 days after the notice was served on the debtor

 

It is averred that the expression “within 14 days of the date of the default notice “ is not a date within the meaning of the regulations and is not compliant

 

The act requires that the default notice is set out in such a way that it leaves the debtor in no doubt as to what he should do More importantly, it is averred that any default notice which contains the expression:-

 

“Within 14 days of the date of the default notice” as a date by which to remedy the alleged breach ” can never be compliant, even if the creditor were to serve the notice in person on the day that the notice was dated it would give the debtor only 13 clear days in which to remedy the alleged breach.

 

Thus, this particular Default Notice could never had been compliant in this respect. It was defective at the time it was produced.

 

The default notice gives “important details” to the debtor as to how to obtain legal advice, the clear days include weekends and bank holidays therefore the debtor is already restricted to the number of working days he has to work with/obtain legal advise, more or less depending upon which day the creditor posts the notice.

 

The regulations do not permit the creditor to reduce the amount of time given to the debtor in which to remedy and any such reduction in time , whether by accident or design cannot be considered as De Minimus

 

Parliament intended the creditor to be strictly bound to comply with the regulations in this respect .

 

It is averred that the act intended that the creditor should suffer the consequences of his failure to comply with his obligations in respect of default notices and that incompetence. Laziness , or a total disregard of the regulations would offer no relief to the creditor..

 

 

 

3/ Overstated amount to remedy the breach

 

The act and regulations demand that the sums quoted as being required to remedy the breach be accurate.

 

The amount of arrears of instalments that were due at the time the claimant issued the Default Notice were in the region of 700 pounds

 

The claimant demanded that the defendant pay the balance of the account in full - a sum of 9,934.2l in order to remedy the alleged breach I suggest that an overstatement of the amount to remedy the alleged default by 9,200 pounds can not be regarded as De Minimus, nor can the claimant claim that this would not prejudice the defendant in any way. .

 

The purpose and intent of the act is that if the debtor complies with the default notice it would be “as if the breach had never occurred” therefore the debtor would carry on making monthly payments of sums not yet due under the agreement

 

The demand contained in the default notice sought to defeat that purpose and intention of the consumer credit act

 

In order to comply with this default notice the defendant would have paid in full the sums not yet due under the agreement

 

Further, the creditor may not demand “sums not yet due “ under the agreement unless and until he first serves an effective default notice

 

The creditor, in making a unlawful demand of the debtor to pay immediately sums not yet due under the agreement was acting unlawfully and in breach of the consumer credit act

 

The fact that the unlawful demand for payment of sums not yet due was made within a statutory document is no less unlawful than any other similar demand .

 

The demand amounted to an unlawful repudiation on the part of the creditor and clearly demonstrated to the defendant that the creditor was no longer prepared to perform under the agreement This unlawful rescission was accepted by the debtor

 

The creditor, on 02/09/2009 through their solicitors confirmed in writing that the agreement was terminated.

 

It is averred that since the creditor has failed to comply with the requirements of the consumer credit act he cannot lawfully claim entitlement to the benefits of s87 to terminate and/or claims sums that are not yet due under the agreement, unless and until he first serves an effective Default Notice.

 

It is averred that since the claimant unlawfully terminated the agreement he cannot now, or ever serve such an effective default notice

 

The default notice is prescribed and worded for the purpose and effect of allowing a defaulting debtor in an enduring agreement to return to the “status quo” by complying with an effective default notice.

 

If the claimant issued a further default notice it would involve the fiction that the agreement endured post termination and it would be obvious that its purpose and intent would be defeated

 

The claimant cannot unilaterally re instate the agreement to suit his own purposes or to put right his own mistakes and I note that that the claimant finds himself in this position solely by his own deeds

 

Judge Dyson once famously described such behaviour as the doctrine of approbation and reprobation A person cannot blow hot and cold as it suits him

 

I respectfully request that the court use its powers under CPR 4.2 to strike out the claimants claim in respect of the construction of the default notice and it s failure to be compliant or effective

 

 

The Agreement

 

Notwithstanding the foregoing, the agreement which the claimant, through his solicitors has confirmed will be relied upon in his claim is that which was sent to me by the claimant on 21 April 2009. A further similar copy was sent to me by the claimant in October.

 

This “agreement” consists of an pre contractual “ application form“ , a pre contractual application form cannot be binding upon subsequent agreement .

 

It is A4 and printed one side only

 

To be regarded as an executed credit agreement the application form would have to contain at least the signature of the debtor and the prescribed terms must be contained within that signature document The prescribed terms cannot be referred to our found In another document.

 

The document contains some reference on the face mainly to use of my information as would be expected of an application form, and a section headed “use of my information”

 

Close to the signature box is a reference to the fact that I have read the terms, directing me to the part headed “ Use of my information” it is clearly a reference to what is contained above the signature

 

There are no prescribed terms within the document nor any reference to them

 

Therefore this application form, devoid of the prescribed terms cannot be a properly executed agreement

 

As this Is an agreement prior to April 2007 it would be defeated by s127(3) in that it does not contain the prescribed terms within the signature document and the court is prevented from enforcing it

 

I respectfully request that the court- if it has not already done so in respect of the default notice referred to above, use its powers under CPR 4.2 to strike out the claimants claim as the construction of the document which it relies upon as a cause of action is not compliant.

[volvo]

subbing

[hatesdebt]

Thanks for the update. Best of luck and keep us informed...

[diddydicky]

ok, got the new super dooper strike out application prepared,

 

the three prongs are

 

prevented from enforcement due to s78 (6)

 

defective DN (and how)

 

CCA not legally enforceable (backup)

 

ill post the witness statement on one post and the strike out summary-cum skeletal on another

[diddydicky]

IN THE XXXXXXX COUNTY COURT CLAIM No XXXX

 

 

Between

 

 

XXXXXXXXXX SOCIETY*

 

and

 

 

 

XXXXXXXXXX*

 

 

_________________________ _____

 

APPLICATION TO STRIKE OUT

CLAIMANTS CLAIM

_________________________ _____

 

 

1. This application is made in accordance with the Civil procedure*Rules, Part 3.4 (2) (a)on the basis that the claimants claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:*

 

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.

 

2. In this case, the defendant maintains that because of the construction of two documents produced by the claimant and upon which their case relies, namely, a signed application form which the claimant purports to be an executed Consumer Credit Agreement and exhibited as (XXXX) and a Default Notice served by the claimant on the defendant and exhibited (XXXX) their case must fail at law and it is appropriate that their case be struck out without a trial.

 

The application is also made on the basis that by virtue of the claimants failure to comply with his obligations under s78 of the Consumer Credit Act he is prevented by s78 (6) of the Act from enforcing any alleged agreement.

 

 

 

 

Whilst the claimant has not supplied copies of the agreement or default notice with or subsequent to issuing the claim in September 2009 or in response to CPR31.14 requests from the defendant. He has however , by a letter dated 27 October 2009 and exhibited as (XXXX) and sent by the claimant’s solicitors XXXX confirmed that the document sent to the defendant in response to a s78 request in April 2009 , and (exhibit XXXX) is the original credit agreement and that the default notice in my possession and exhibited (XXXX) are the document relied upon in their claim

 

.

3. The claimants documents, as a basis for enforcement of a debt under the Consumer Credit Act 1974 (“the Act”), are not valid at law for the following reasons:

 

The Credit Agreement

 

(a) The Consumer Credit Agreement confirmed by the claimant as being the original executed agreement (exhibit“XXXX) is legally unenforceable as it does not contain the required information 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. Specifically lacking is:*

 

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 (g) below) make it clear that the required information must be included in the same document and not merely referred to 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.

 

© In this case the reverse of the document is blank and the claimant does not even attempt to refer to or provide any terms and conditions relating to this agreement.

 

(d) 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.

 

(e) 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.*

 

(f) The claimant has admitted that the agreement in question was entered into on 8/7/2003 . Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question.

 

(g) 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 his agreement.

 

4. 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 claimant’s claim must fail.

 

 

5. The Default Notice

 

The claimant relies upon a Default Notice which it alleged was served on the defendant on XXXX 2009, the day after it was issued. The defendant states that this claim is not borne out by the postal information on the envelope it came in and claims that the notice was received in the post on XXXX.

 

6. The default notice was seriously defective in several respects as detailed below and therefore was invalid. The claimant therefore was not entitled to the benefits of s87 and by extension could not lawfully bring these proceedings .

 

(a) Did not state a “date” by which the debtor must remedy the alleged Breach.

 

The default notice stated that payment “must reach your account within 14 Days of the date of this default notice”- and should have stated a “date” by which the breach was to be remedied

.

 

1983 No 1561- Consumer Credit(Enforcement, Default and Termination

Notices)Regulations 1983

Schedule 2 (3) © and (d) of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (as amended) requires a default notice to specify a date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken

 

 

 

 

 

 

 

 

(b) Did not allow the prescribed 14 clear days after service in which to Remedy the alleged breach.

 

The claimant alleges that the notice was served on XXXX the day after it was issued. The defendant claims it was received in the post on XXXXX It is averred that the dispute as to date of service is irrelevant since a Default Notice which uses the phrase “within 14 days of the date of this Default Notice” can never allow the prescribed time in which to remedy Since it does not allow for service (which was by post). It is noted that Even if such a notice were served in person on the day it was issued it would Still be defective since the 14 clear days start the day after the date of Service.

 

1983 No 1561- Consumer Credit(Enforcement, Default and Termination Notices)Regulations 1983.

 

if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken;

 

© Failed to state the outstanding arrears required to remedy the alleged breach

.

The default notice did not state the amount of arrears it alleges were outstanding. The claimant had notified the outstanding arrears in writing 6 days prior to the issue of the Default Notice as hundreds.

 

1983 No 1561- Consumer Credit(Enforcement, Default and Termination Notices)Regulations 1983

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of

 

(d) The amount to be paid in order to remedy the alleged Breach.

 

The default notice demanded that in order to remedy an alleged amount of approx HUNDREDS in arrears, (as of 6 days prior to it’s issue) , That the defendant must pay the balance of the account, THOUSANDS in full, and was therefore overstated by approx THOUSANDS, and clearly included sums that were not yet due under the agreement. The amount may also include unlawful charges which the defendant cannot yet evaluate as the claimant has failed to Supply details of how the figure in the Particulars of claim have been arrived at either with the claim or in response to a CPR 31.14 request.

 

(e) Was missing important prescribed text .

 

1983 No 1561- Consumer Credit(Enforcement, Default and Termination Notices)Regulations 1983

 

“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 advice. If it is not included you should contact us to get one.” This was not included in the Default Notice

 

(f) The default notice was an unlawful rescission by the claimant.

 

The claimant, by denying the defendant the continuing opportunity to pay sums not yet due under the agreement by monthly instalments of his own choosing (subject to a minimum) and demanding immediate payment of those sums unlawfully rescinded the agreement,

 

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 failure of a*Default Notice to comply with all these regulations 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*Default Notice served under 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 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.

 

10. 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

…

12 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.

 

42. 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 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 default*.

 

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.

 

 

9 Failure to Comply with s78- Claimant prevented from enforcement

 

(a) In XXXX 2009 the defendant made a s78 request to the claimant (exhibit XXXX) to provide a true copy of the executed credit agreement The claimants obligations extended to providing a copy of the executed agreement and the terms and conditions pertaining to the agreement both at the time that the agreement was entered into and any current varied terms and conditions, any other document referred To in the agreement and a signed statement of account.

 

(b) In response to the request the claimant provided to the defendant a single page A4

application form ( exhibit XXXX) which it purported to be an executed credit

agreement. The rear of the document is blank and there are no prescribed terms contained within the document . There are no terms and conditions pertaining to the Agreement save for those contained on the face of the document which concern Data Protection issues.

 

© The defendant has made several written requests to the claimant to comply with

S78 . To date no terms and conditions (of any description) have been supplied By the claimant to the defendant in respect of this agreement. No signed Statement of account has ever been provided by the claimant.

 

10. Sect 78 Consumer Credit Act 1974- states:-

 

(1)*The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of*£1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

(d) OFT guidelines say:-

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original*might*have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

 

Regulation 7(1) of the 1983 Regs

 

requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied.

 

S78 (6) states:-

 

If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement

 

11. Prior to the issuing of this application the claimant has been given an opportunity by the defendant to withdraw their claim on the basis of the above, without costs being incurred. No withdrawal has been made, and the defendant therefore also requests that costs of this application be awarded against the claimant.

 

12. The invalidity of the claimant’sCredit Agreement and /or the default notices and the prevention from his enforcement of the alleged agreement under s78 (6) 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 pursuant to CPR Part 3.4(2)(a).

 

 

 

I believe the facts stated herein are true.

Edited February 3, 2010 by diddydicky

[diddydicky]

Page 1 of 3

 

 

In the XXXXXX COUNTY COURT Claim No XXXXX

 

 

 

Between:-

 

 

 

XXXXXXXXXXX (The Claimant)

 

 

And:-

 

 

 

XXXXXXXXX (The Defendant)

 

 

 

WITNESS STATEMENT

 

 

I, xxxxx, of xxxxxxxxxxx am the defendant in this case. I am a litigant in person I make this witness statement in support of my application to strike out the claimants claim.

 

The matters referred to in this witness statement are within my own knowledge, matters of law and fact with regard to the Consumer Credit Act and associated legislation and legal authorities have been obtained by reference to limited legal advice and research by my husband upon whom I have relied to set out my defence and this application.

 

All exhibits are referred to as such (XXX/XX) and are attached. The Consumer Credit Act 1974 is referred to for brevity as The “Act” .

 

1/ On xxx 2009 I made a request under s78 of the Act to the claimant for

a true copy of the executed agreement(xxx/1).The claimant was obliged, under

s78 to provide me with a true copy of the executed credit agreement, the terms and

conditions of the agreement both at the time the agreement was entered into and

any varied or current terms and conditions, a signed statement of account and a

copy of any other document referred to in the agreement.

 

Page 2 of 3

 

 

 

2/ In a letter dated xxxx 2009 (xxx/2). the claimant sent to me a single A4 piece

of paper which the claimant claimed was a true copy of my executed credit card

agreement (xxx/3). It Contained none of the prescribed terms within the

signature document. It contained no reference to any Terms and conditions

other than those included in the face of the document (and which related only to

The Data protection Act ) It was blank on the Reverse and no other documents

were enclosed.

 

3/ On xxx 2009 I wrote to the claimant and explained his failure to comply with

s78 in detail and asked him to comply in a further 14 days ( xxx/4)

 

4/ On xxx 2009 I wrote to the claimant referring to the absence of prescribed

Terms within the document and requesting a copy of a properly executed credit

Agreement (xxx/5)

 

5/ On xxx 2009 I sent a further letter asking the claimant to comply with his s78

Obligations (xxx/6)

 

6/ In a letter dated xxx 2009 the claimant demanded payment of outstanding

arrears of xxx.xx (xxx/7).

 

7/ On xxx 2009 the claimant served on me by post, a Default Notice (xxx/8)

under S87 (1) of the Act and which was dated xxx.2009. After advice and

research I found the default notice to be seriously flawed in several respects as

detailed below which made it invalid and did not give the claimant the right to

take “the next step” ( to claim entitlement to the benefits of s87) .

 

(a) The claimant failed to state as prescribed, “A date” by which the alleged

breach was to be remedied.

 

(b) The default Notice was Missing Important Prescribed Text directing the debtor

as to where to obtain advice in respect of the default notice

 

© The default notice did not state the amount of arrears that were outstanding

 

(d) The default notice demanded payment of the full balance of the account

X,xxx.xx and apart from being grossly overstated contained unlawful charges

and was comprised largely of sums not yet due to be paid under the agreement.

 

 

 

 

Page 3 of 3

 

(e) The construction of the Default Notice was such that I would be unable to

Lawfully comply with it and that if I did comply with it then it’s prescribed Intent

and Purpose would be defeated.

 

(f) The default notice failed to allow me the prescribed 14 clear days after the date

of service in which to remedy the alleged breach.

 

(g) The default notice amounted to an unlawful repudiation by the claimant.

 

8/ In a letter dated xxx 2009 (xxx/10)the claimant froze my current

account and demanded payment of xx,xxx This action was

taken by the claimant despite the fact that the correct prescribed time for remedy

had not yet expired. and was the only source of funds available to me at the time

for my day to day living expenses

 

9/ In a letter dated xxx 2009 the claimant demanded the sum of xx,xxx.xx failing

which a charging order against my property would be applied for (xxx/11)

 

10/ On xxx 2009 , it being clear to me from his actions that the claimant did not

intend to perform I wrote to the claimant (xxx/12) and accepted his

unlawful repudiation of the agreement

 

11/ In a letter dated xxx 2009 (xxx/13)the claimant confirmed that the

document sent to me on xxx 2009 (referred to in 2/ above ) was the

original credit agreement

 

12/ In xxx 2009 the claimants solicitors xxxx commenced the present

Action.

 

13/ In xxxx 2009 xxxx were replaced by xxxx as the claimants Solicitors

 

14/ On xxxxx 2009 I wrote to the Claimant, and invited the claimant to withdraw

without costs.(xxx/14). I have received no response

 

It is my contention that the claimant has acted vexatiously and has commenced legal action knowing full well that it cannot be substantiated and I request that the court strike out the claimants claims without trial for the reasons stated.

 

 

Statement of truth

Edited February 3, 2010 by diddydicky

[citizenB]

When are you submitting this, dd

[vint1954]

Good grief, you have been busy.

[diddydicky]

hopefully this week

 

just waiting for comments in case i have cocked up anywhere then just the exhibit topsheets to do i think

[freethemice]

Reading with intrest.

Am I right in thinking you are still awaiting aq's from the other side or have you now got an hearing date?

When Halifax credit card tried to take me to court via the bulk centre in Northampton I remember reading they had only 28 days to submit the AQ's or they would have to apply to the judge for permission to continue is this not the case here?

[diddydicky]

no aq's been away for a few days

 

now preparing the exhibits in readiness

[freethemice]

"If you fail to return the allocation questionnaire by the date given, the judge may make an order that

leads to your claim or defence being ‘struck out’ (Rule 3.4): this means you could not proceed with it.

Alternatively the judge may order an allocation hearing at which the judge can order any party who

has not filed their questionnaire to pay, immediately, the costs of that hearing."

 

If you do not know the date the other sides allocation questionaire was due to be submited by I would suggest phoning the court then proceeding under rule 3.4 for a strike out or a hearing with costs awarded to yourself.

 

Also have the other side actually followed protocols when changing solicitors as required by 42.2 (change of solicitor). I had alot of luck with this piece of law at my hearing and I think it counted strongly to get me awarded costs. Eversheds had sent the court and me a letter telling of thier involvement but nowhere in it did they state they were now the solicitors acting for Nationwide.

 

 

 

 

[freethemice]

quote:

"8/ In a letter dated xxx 2009 (xxx/10)the claimant froze my current

account and demanded payment of xx,xxx This action was

taken by the claimant despite the fact that the correct prescribed time for remedy

had not yet expired. and was the only source of funds available to me at the time

for my day to day living expenses"

 

This paragraph from your witness statement reads a little strange. Do you by freezing your current account the claimant took away the principal source of funds you had to rectify the alleged default? or that by taking action before the prescribed time for remedy the claimant placed you in a perilous financial position by withholding funds needed to pay priority debts?