Help required please county court defence.

[jasminesdad]

Help & Advice Needed Please

 

 

I have been helping my friend with a county court claim defence.

 

Using the advice I have found on the site we have been able to hold our own,

(Grateful thanks to all previous postings ) but now we are beginning to question our sanity and judgement.

 

This is a potted history of the case so far (we can put up any docs referred to if required)---

 

June 2009 Friend has been on reduced payments for around 12 months for a personal loan and overdraft renewing each 6 month period - receives phone call from bank requesting increase- cannot comply no money –sends bank letter explaining -encloses financial statement- receives letter from claimants solicitors demanding full payment or court- we reply with letter and financial statement.

 

End June receive court claim from Northampton – we use site info to draft defence based on insufficient / vague particulars need proof of ca (for loan) & default notice copies. Court stays case. ---|Proof never comes.

 

Oct 2009 stay lifted -- allocation questionnaire arrives-- case transferred to local court

Complete allocation questionnaire - attach suggested order for direction (proof of ca & default notices) and return inside due date by hand.

 

Nov 2009 receive copy of letter to claimant from court stating case struck out unless their allocation quest. returned before stated date in December

 

End November receive copy of questionnaire from claimants solicitors and letter to friend requiring proposals for payment within 14 days-- Questionnaire requests stay of 40 days to negotiate and settle - and fee cost - together with statement that claimant will apply for summary judgement. Also enclosed finally is copy of ca and screen print claiming to prove default notice but with no specific details or ref.

 

Letter from court staying case until end Dec. we send letter to claimant “Admit Facts” and receive denial by return of post saying screen print is proof of default together with letter requiring proposals to pay within 14 days.

 

Other facts sent SAR request—no mention of default notices or copies received in bundle. Claimants solicitors claim default made Jan 2008 – friends credit file shows default for overdraft registered May 2009 Personal loan not defaulted but 6 payments late (updated Nov 2009)

 

 

From what I have learnt from the site - no default notice (s)( and surely if they had them they would prove it) no court enforcement --together with full amount requested proving termination ( no letter received) unlawful rescission of contract.

 

Have I either read it wrong, am overconfident or just plain stupid but have we got a good defence/case.

If we are correct we do not want to trip up on a legal omission so please could we ask a more experienced cagger for opinion/ help Thanking you all in advance

[supasnooper]

In my humble opinion, you'll need to be careful here.

You'll need to put them to strict proof of service of the Default Notice.

 

You will also need to put them on the spot about the screenshot.

You will need to get them to prove a document was created as a result of this.

 

Have a look at this thread from post 67 for some ideas - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-4.html#post1776334

[jasminesdad]

Thankyou Supasnooper will start looking for ideas

[jasminesdad]

Am now following supasnoopers excellent suggestion and drafting a letter to put them to strict proof of service of the Default Notice and to prove a document was created as a result of this screen shot.

 

One thought has occured to me and that is, am I jumping the gun here or should I wait until a court date is set and then ask for this proof as part of my defence.

 

The reason I ask this is that the court have placed a stay on procedings to allow for negotiations to take place but I don't see how we can negotiate when they have not supplied us with all the facts we asked for originally using cpr14 . or would the court not see it this way? Anyone got a thought please

[supasnooper]

I would not contact the claimant at the moment.

 

If you have proof of postage and service of your CPR request then you can show these to a Judge that you have been trying to get the required documents.

 

What CPR request did you send ?

 

Is the amount of the claim below or above £5000 ?

 

Finally, you could send the creditor a 7 day Letter Before Action for them to comply with the SAR request before Court action is taken -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2645181.html

[jasminesdad]

Sent cpr31.14 have proof of postage (royal mail signed for)

 

Claim total is over £5000

 

Have already received 2 packs to my SAR request which we sent to Natwest and not the solicitors, but neither pack, one from Telford, the other from Scotland contains any reference to a default notice (s) and in all the paperwork no reference to it. Have also checked the account statements to see if a charge has been made for it (read somewhere that sometimes they charge)-- none

 

Will take your suggestion, with greatful thanks, and not contact them at the moment

[supasnooper]

Unfortunately, most creditors do not keep a copy of the DN so that is probably why you'll never see a copy.

However, you need to persuade a Judge that this is an Important document and that a copy of it is essential.

 

As the claim is over £5,000, the case will go to Fast track, which gives good rules on disclosure, so you may be able to get the Judge to make an Unless Order for Nat West to produce it.

 

You may have to look more closely at the screenshot - does it give any details of the content of the DN ?

[jasminesdad]

Thanks Supasnooper --- will swat up on fast track and unless orders

 

The screen print appears to be a copy of a copy and seems to be a generalisation from an archive (but that's me speculating )it says ---Description---"Produce dfault notice manually" no data to display ---- I will post it up later today.

The only other thing is that the default for the o/d shows up on the credit file 16 months after it was alleged to have been actioned.

 

No default is shown on the credit file for the loan.

[42man]

Some excellent advice here from Snoops....i'm just adding this especially so as there is some high court reference to default notices and if the other side try to say it is a 'de minimus' issue then it ISN'T -

 

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.

[42man]

And do read this excellent thread too - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[jasminesdad]

Thankyou 42man Will read the thread and thanks for the earlier post on the "de minimus" issue

 

We have no illusions about the "battle" we have ahead but the wealth of knowledge and advice we are receiving, and exists on this forum is fantastic and gratefully received.

[jasminesdad]

If I have done this properly here is the link to the document received from the banks solicitors which they say proves a default notice was issued (did not appear in the SAR request pack

 

http://i814.photobucket.com/albums/zz64/alannr/Scan10001.jpg

[supasnooper]

So a good question for Nat West is how long does it take to manually produce a DN from the message on the screen ?

 

Is it manually typed ?

 

How are the amounts checked ?

 

etc. etc.

[jasminesdad]

and presumably both default notices are generated from this screen shot as both have different account numbers

[supasnooper]

If NatWest are relying on the screen shot for both cases then I'm sure you'll invite the Judge to decide which case the screenshot refers to.

 

Another point to put to the Judge is the service of the Default Notice.

It is an important document, so was it sent by a trackable method of postage ? (Royal Mail provide at least 2 such services)

[jasminesdad]

Certainly will be asking. Thank you for point 2, will be putting that down as well

[fdpm]

Just putting in my tuppence worth... I was recently in court and the Claimant (BOS) have included in their POCs and Witness Statement a piece of paper that shows a computer screen that states I was sent a Default Notice and when I queried the validity of this, I was warned by the Judge not to 'go there' as I was basically accusing the bank of lying!

 

I felt like my whole case had crumbled there and then... and although I won the day in that they have had to come back with a new set of POCs, I am assuming that I cannot use the faulty DN in my defence.

[jasminesdad]

Thanks FDPM Well Will certainly tread very carefully

[Craftygirl42]

Surely the onus is on them to prove that it was sent though. I appreciate what the judge was saying, in your case FDPM, but its still heresay, isnt it