Egg/dryden lost dual CCJ Card+Loan - No REstons after CO.

[citizenB]

I think this will be a witness statement in Opposition to the the claimants claim for Summary Judgement. You are going to have to state a case for going to trial and denying the them the right to SJ.

 

What this is, is a nasty tactic of having two bites of the cherry. They will try to get the summary judgement, if they lose that, then they get to have another go at trial.

[citizenB]

Below is an example of a WS in opposition to a Summary Judgement application by another CAGer, HTH

[large boy]

Thank you for that!!!

 

If I scan their witness statement, will you be able to advise please?

[citizenB]

Thank you for that!!!

 

If I scan their witness statement, will you be able to advise please?

 

 

Yes, of course. Do make sure you remove any information that would identify you, the court, or the opposiition

[large boy]

Well, time has marched on at quite a pace and today is the day of my next hearing!

 

I had thought I was going to submit extra paperwork but, after checking with the court, I was ordered by the court to submit my defence in early january so, this is as a result of that paperwork submitted.

 

I am working on the theory that the credit card account is invalid because of the wording in the contract, as mentioned on many previous cases and the loan being incorrect as the default notice has no information at all, no name, address, account, amounts, absolutly nothing, it appears to be a kind of template?

 

To reinforce this, the solicitors sent me an updated witness statement which arrived yesterday that also has the same incorrect default notice.

 

What is the likely outcome?

[citizenB]

You MUST advise the court that the opposition's WS only arrived yesterday and that you havent had time to study it properly.

 

Outcome ? Hard to say, either they are awarded the SJ or it is dismissed.

 

You must assert that you have sufficient reason for this to be resolved at trial.

[large boy]

The envelope is postmarked 3.3.10 so, with the court date being the 9th, doesnt this have to be submitted seven days before?

 

So, do I push for a trial or ask for the case to be dismissed as all the peperwork is flawed?

[citizenB]

I am not sure how much time you have before the hearing.. below is a draft defence produced purely for a dodgy default notice. If you have time to study it ,see how the provision of a valid default is important before a creditor can take you to court. Please let us know how you get on, regardless of the outcome. But good luck:)

 

 

 

 

xx

 

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

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

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

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future

[large boy]

Thank you!

 

I'll study it now and take a copy with me!!!

 

Fingers crossed and I will let you know the outcome on my return!

[citizenB]

The envelope is postmarked 3.3.10 so, with the court date being the 9th, doesnt this have to be submitted seven days before?

 

So, do I push for a trial or ask for the case to be dismissed as all the peperwork is flawed?

 

Yes, all witness statements etc should be with the court and the defendant (or claimant) 7 days prior to the hearing.

 

Was this sent 1st or 2nd class post ? Very important because 1st class = 2 days 2nd class or UK Mail = 4 days (working/business days)

 

Only the judge will decide if you have sufficient chance of winning at trial. It is for you to persuade him that you do have that chance with the evidence you have.

[kurvaface]

Good luck

[large boy]

I'm not sure as they are franked, so am unsure as to the class but, the two seperate envelopes are both clearly franked 3.3.10 so impossible to have received them 7 days prior to today!!

 

If the judge says yes to a trial, will this mean I need to hire someone to represent me?

 

If the paperwork, including the ones received yesterday, are so obviously wrong, what should be my line of attack today?

[citizenB]

I'm not sure as they are franked, so am unsure as to the class but, the two seperate envelopes are both clearly franked 3.3.10 so impossible to have received them 7 days prior to today!!

 

If the judge says yes to a trial, will this mean I need to hire someone to represent me?

 

If the paperwork, including the ones received yesterday, are so obviously wrong, what should be my line of attack today?

 

You could instruct someone to represent you. You could also do it yourself..

 

You should just point out all the discrepancies in the paperwork you have been provided with and that without the correct documents you have been unable to prepare properly.

 

If you have sufficient time then list all the things that are "suspicious".

 

Default notice is invalid because......

 

CCA agreement incorrect because...

 

Have they provided you with a full breakdown of the account so you can see if the amount they are asking for is correct ? (eg do you have ALL statements) Have they added unlawful charges etc.

 

Was this account assigned or is it still with the original creditor, in which case has the assignment been made correctly.

[large boy]

The costs they are trying to get from me are, at the moment, over £10K for the two cases.

 

I have absolutly nothing so, if they win I'll probably be made bankrupt anyway

[citizenB]

The costs they are trying to get from me are, at the moment, over £10K for the two cases.

 

I have absolutly nothing so, if they win I'll probably be made bankrupt anyway

 

 

Gulp, what track is this on ? What is amount being claimed ? Roughly.

[large boy]

Er, not sure but fast track sounds familiar?

 

The original amounts were approx £25 in total between them

[citizenB]

Er, not sure but fast track sounds familiar?

 

The original amounts were approx £25 in total between them

 

Right, just seems alot of costs. Hopefully you can argue against them getting that amount.

[citizenB]

Well, absolute disaster

 

I've had two summary judgements against me and all their costs

 

The judge wasnt prepared to hear anything I said, I even pleaded with him to allow me to mention the flawed agreements or the no default notices, everything was given to them

 

What can I do now?

 

The judge did cut their fees in half, to £5K - whoopee!

 

I'm skint, I have no money, no work, no assets just a share in my house, can they take that from me?

 

Can I appeal based to the fact the egg aggrements are not legally binding or is it too late?

 

Any advice is greatly appreciated as I'm scared out of my wits now, if only I could afford to run away I would, I cant even afford to be an alcoholic and drown my sorrows

 

A complete nightmare

 

I honestly dont know what to say. Other than I am truly sorry to hear this.

 

Your partner is not resposible for your debts so I cant see you losing your home.

 

TBH, I am not sure how the creditor will seek to have you repay. We really need some more experienced CAGers in here.

 

When you feel up to it, can you give us more detailed account of what happened today so you can get best advice.

 

I am going to have a look back over your thread and see exactly what has happened and try to get a summary together for anyone looking in and I will flat your thread up for attention by others.

[large boy]

Thanks Citizen

 

I just cant believe that I wasnt given a chance

 

The judge told me that when I represented my defence statements in early January, they are inadmissable as he hadnt given me permission to do this?

 

I did ask the question, what was I supposed to file then as all I provided were facts that were against eggs case and he told me that I had no facts - what does that mean?

 

All the facts were true, a dodgy credit agreement and no default notice. The solicitors had created a statement suggesting that they didnt need to provide me with the default notice, even though I still believe I never received one, and all they needed was a default template, this was sufficient?

 

How can they get away with it?

 

They can create what they want, not provide anything concrete and win the case with costs?

 

I'm seriouslt scared about what will happen as, having read other threads, will they try and put an order on my house and take it from me?

[large boy]

I'm not sure how its happened but, the header now says its a thread by hungry bear not Large Boy?

Edited March 9, 2010 by large boy
spelling

[citizenB]

Well, what an horrible experience.

 

Council, the guy from Egg, wanted to try and get two summary judgements today and wasnt going to take no for an answer. He even asked me if I wanted to just admit I was wrong and be done with it, the cheek.

 

The judge was very nice and a decent guy - he told them they had filled their papers too late and that he though it was grosely unfair for them to apply of rsummary judgement without them having to provide me with any papers or witness statements.

 

So, he told their guy to give me his copies of the paperwork and allow me to file a decent defence as that was what the consumer credit act was there for - I felt so releived by this as it bought me some time.

 

Having said that, not much time as I have been ordered to file both of my defences at the court and the solicitors, on or by Tuesday 5th January.

 

I'm still shaking like a leaf but feel better knowing I have two more weeks to try and move things forward.

 

I know this is a strange time, lots of holidays, drinking and a relaxed few weeks but, I would really appreciate any help I can possibly get please!

 

 

Thanks Citizen

 

I just cant believe that I wasnt given a chance

 

The judge told me that when I represented my defence statements in early January, they are inadmissable as he hadnt given me permission to do this?

 

But you were told to file defences by 5th January 2010.. (see above post). Which you did

 

I did ask the question, what was I supposed to file then as all I provided were facts that were against eggs case and he told me that I had no facts - what does that mean?

 

I think this mean did you put forward any disputing evidence. I think you were at one point asked to scan in the opposition's Witness statement, which doesnt appear to have been done.

All the facts were true, a dodgy credit agreement and no default notice. The solicitors had created a statement suggesting that they didnt need to provide me with the default notice, even though I still believe I never received one, and all they needed was a default template, this was sufficient?

 

Had you put the above into a Witness statement/Defence though ?

 

How can they get away with it?

 

They can create what they want, not provide anything concrete and win the case with costs?

 

I'm seriouslt scared about what will happen as, having read other threads, will they try and put an order on my house and take it from me?

 

I think we will need to see what the order says when you receive it. But I dont see they can take your home from you as from what you say, you are part owner. The other part owner will be able to object to any order of sale, I believe as they are not responsible for your debts.

 

 

There appears to be one hell of a muddle here.

 

The original claim was issued against you in March 2009.

 

Summary Judgement was submitted in December 2009 because you failed to file papers as directed.

 

However, apparently you didnt receive anything from the court. They sent paperwork to you on request, in December 2009, but it was all dated July 2009.

 

You went to an allocation hearing in December. Where you were told to file your defence by January 5th, 2010. Now the Judge is saying you didnt have his permission to do so ? I believe the other side were asked to provide you with the missing paperwork.

 

Facts: Both default notices are just template notices. They DO NOT show any remedy date, or how much you were expected to repay. They do not even have your details, account numbers, name address on ? Where were the originals or back up information ?

 

One of the DNs states it was sent to you on 13th July 2009. I dont see how this could be so when the claim had been issued in MARCH 2009. I am sure they cant issue a Default Notice partway through a court case ??

 

Ok, I am going to flag this up for the site team. Lets see what they advise.

 

I doubt very much anyone will be able to look in this evening.. but they surely will over the next couple of days.

 

 

 

 

 

 

 

[large boy]

thanks for your help so far

 

fingers crossed I can get some further advice in time!!!

[large boy]

Please help

 

I had a case a while ago and lost to egg even though I thought we had a solid case.

 

Ive just received documents to say they have put a notice of application to register a restriction against the land?

 

The house I live in is mainly owned by my partner, I only own a small proportion but, she has also been notified that this will go ahead and there is nothing we can do to stop them.

 

What advice has anyone please?

 

The debt was mine, not my partners and she has notning to do with this, how can I stop them putting an order against our house?

 

The other thing is, if they do this, will it still be acruing interest until it becomes the full value of our home and they take it away?

 

Please please help

 

LB

[Ganymede]

I assume you have a CCJ against you? Is there any chance of getting it set aside and defending it?

 

The Restriction is a Charging Order, but would be placed against the debtor's beneficial interest only, your partner's share of the equity (if any) would not be affected.

 

If the Charging Order is granted then an Order for Sale is a possibility if there is sufficient equity in the property. Have a look at this thread...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/203298-guide-charging-orders-orders.html

 

 

The the judge insists on granting charging order make sure that you have a copy of your income and expenditure with you and asking for the charging order to be suspended on £XX.XX per month or whatever you can afford.

[large boy]

Thanks Ganymede

 

That seems very confusing to the layman!

 

Am I assuming that they CAN add interest until the property is sold or, they can actually make me sell my portion of the property?

 

I am surprised that I was never notified about the hearing, is this usual?

 

The scarey thing is they have seriously affected my partner with this action and she is completely innocent