Dissecting the Manchester Test Case....

[diddydicky]

I have read this thread and related documents, but am still a bit unclear as to the practical impact and the current state of play. Is the followoing correct? (If not, can someone correct).

 

That "reconstituted documents" can now be used for purposes of "compliance" wth CCA document requests.

 

That DCAs etc can still chase people (threats etc) if they do not comply - but to be honest - they have always done that anyway, rrespective of the rules

 

My main query is as to whether anythng has changed re ENFORCEMENT. Can they "cobble together" an agreement which would allow a judge to "make an order"? Or do they still need to provide THE agreement, wth all the terms contained in one document? Has the Manchester case changed this?

 

My clear understanding was that a Judge CANNOT make an order unless the original/true copy was produced at TRIAL. Has this changed?

I have always focussed on what the DCA has to do to get a judgement, and less on all the threats, CCA requests, compliance etc. That is, in my view, just noise. If I KNOW they cannot get a judgement, then I am happy to just let them threaten all they want (water off a duck's back).

 

If someone can give a QUCK AND SIMPLE clarification of the key ponts it would be greatly appreciated.

 

the act refers to the fact that the debtor must have signed an agreement containing all of the prescribed terms

 

it also says that the original SHOULD be produced in court

 

as ever preparation and a convincing argument is what is required to win the judge lottery

[angry cat]

Play Mind Games PO;

you wouldn't do that, would you!

[lookinforinfo]

It is sometimes difficult to judge the timing of pronouncements by the OFT and therefore their significance in regard to the latest two cases. But I wonder if they are concerned that in Mcguffin v RBS the judge took the matters of what enforcement means so far from what the OFT [ and us] thought, that they felt they had to remind the financial institutions of the dangers they run should they not follow the OFT gudance. [i am thinking that the Court appears to give creditors a green light to issue default Notices and threaten legal action ].

 

It seems awfully easy to hoodwink these Judges. In the McGuffick case the Judge agrees with the bank submission -"Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1)."

 

What conundrum?

65 Consequences of improper execution

(1) An improperly -executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

If there exists an improperly executed agreement the only way it can be resolved is in Court and there is no mention in 65 [1] that enforcement is or is not permitted!

In fact it is only when the creditor fails to comply with 77 to 79 and after the stipulated time when a default occurs that the creditor is not allowed to enforce. So there is no conundrum.

Sadly Judge Flaux falls for it and so does Judge Waksman

[angry cat]

Mr. Handyside QC appeared to be attempting to prove to HHJ Flaux that, RBS was not/had not been an irresponsible lender!?

 

Did HHJ Flaux really fall for that?

 

Clearly, RBS were/are quite worried about their irresponsible lending, so they should be.

 

There is much in the mixing bowl at the moment...

[JonCris]

You would think that after what the banks have done to the world economy & the underhand way they did it the courts would get past the myth that they are to be trusted

[the_shadow]

You would think that after what the banks have done to the world economy & the underhand way they did it the courts would get past the myth that they are to be trusted

 

trouble is, the whole world has seen what happens when a single bank collapses. they are in protect at all costs mode at the moment imvho

 

S.

Edited January 3, 2010 by the_shadow

[angry cat]

You would think that after what the banks have done to the world economy & the underhand way they did it the courts would get past the myth that they are to be trusted

 

RBS Fred Goodwin and: Cummings under the Microscope:

 

Failings at the banks to be laid bare - Times Online

 

Be under no illusion, they are NOT to be trusted...

 

AC

Edited January 3, 2010 by angry cat

[JonCris]

RBS Fred Goodwin and: Cummings under the Microscope:

 

Failings at the banks to be laid bare - Times Online

 

Be under no illusion, they are NOT to be trusted...

 

AC

 

These people are hardly the ones to conduct a fair & plausible investigation particularly as auditors they where/are part of the problem .........I'd call it trying to run with the hare AND the hounds

[angry cat]

These people are hardly the ones to conduct a fair & plausible investigation particularly as auditors they where/are part of the problem .........I'd call it trying to run with the hare AND the hounds

 

Exactly!

 

The system has to change; the question is:

Who, will bring about the change?

 

The Banks are dancing rings around the Gov's so-called Regulators.

But, the so-called Regulators are just the Gov's puppets....

 

Who will bring about the change?

 

EU or, us; the British Electorate?

[ihpj]

SUBBI'ing this important thread.

 

Altho' I think, like Bank Charges, we (The Consumers) have again been screwed

[23sopwith]

is this "ruling" retrospective

ive got a letter from the leeds mob dated nov 2009 stating that they are withdrawing from the matter as their clients hbos can not supply an original copy of the agreement; it goes on to state they will not contact me again unless the agreement is found, then they reserve the right to proceed.

can i now expect one of the reconstituted agreements.

sorry if this has allready been covered

sopwith

[questioner]

they may well ignore your letters, however if and when it comes to court- they will get VERY short shrift from the judge, the more so if they attempt to claim costs at any stage since you Clearly attempted to reasonably resolve the matter without the need of the court process

 

i would advise EVERY cagger, whether they have previously sent s77/79 requests, to write in similar terms and offer to come to an "immediate" decision to propose a means of settling any sums claimed in return for the provision of the document to prove the agreement

 

DD - I like this and it says what needs to be said!

Edited January 4, 2010 by questioner

[basa48]

is this "ruling" retrospective

ive got a letter from the leeds mob dated nov 2009 stating that they are withdrawing from the matter as their clients hbos can not supply an original copy of the agreement; it goes on to state they will not contact me again unless the agreement is found, then they reserve the right to proceed.

can i now expect one of the reconstituted agreements.

sorry if this has allready been covered

sopwith

 

A reconstituted CCA is only to comply with s78. It does not confer automatic enforceability under s61.

[tamarindo]

the act refers to the fact that the debtor must have signed an agreement containing all of the prescribed terms

 

it also says that the original SHOULD be produced in court

 

as ever preparation and a convincing argument is what is required to win the judge lottery

 

 

What is very worrying is that the judge did say quote

 

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act],"

 

So the original agreement is NOT LONGER required in a court case???

 

any comments please

Edited January 4, 2010 by tamarindo

[Basil Fawlty]

What is very worrying is that the judge did say quote

 

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act],"

 

So the original agreement is NOT LONGER required in a court case???

 

any comments please

 

He is referring to being compliant with a s78 request. He is NOT referring to being enforceable in court.

 

BF

[vint1954]

He is referring to being compliant with a s78 request. He is NOT referring to being enforceable in court.

 

BF

I think that this has been the case for some time now. The OFT refer to the s 78 request as a request for information by the debtor and not a copy document. They do go on to say however, that it must be a true copy and that if no original exists, then the creditor would be hard pushed to prove it was a true copy. I think that the original intent of the act was that the debtor should receive a true copy of the signed agreement, that is a hand coppied or typed version, taken from the original document ( pre photocopy). This has now obviously been twisted by creditors and the OFT to an extent, to the mess we are in today. It is plainly unfair if the debtor is denied sight of the original document and its layout.

 

Not sure if the question has been asked of Francis Bennyon on his intent under s 77 - 79.

 

Dont forget, that they need to supply an actual copy of the document under SAR.

[Terrier7]

Happy New Year all!

A few points to keep us all positive!

It seems to me that the majority of claims are from / against DCA's. One of the most important aspects is that there must have been under section 136 of the Law of Property Act 1925 a Deed of Assignment which must be in writing and served (under Section 196 sub para 4) by registered post. I am given to understand by my solicitor that if this has not been done or not done correctly, then the Debt has not been assigned and cannot be collected by any subsequent purported 'owner' of the purported debt.

 

So, demand proof of this. In my current claims which I have initiated against DCA's for repayment of any sums paid to them plus interest and compensation for any costs they have caused me, we are using this as well as other aspects of the various different legislation. We have recently issued detailed, searching Part 18 requests to demand (amongst other things) a declaration of the existence of any deeds of assignment AND the original Registered Post counterfoils or an admission that they do not have them. On this point alone, we intend to seek summary judgement if they do not have them and can't produce them.

 

Also, it seems there are many other sections of Law applicable to the use of credit cards and regulated agreements. Check out this copy thread for a superb defence (which can be tweaked to use as a claim). :-

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxx - Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the amended claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

a) The claimant's statement of case still fails top comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil procedure rules requires that a copy of the written contract be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon

 

 

 

Statutory request made under section 78 Consumer Credit Act

 

4. On xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit X & X

 

5. For clarity, section 78(1) of the Consumer Credit Act 1974 states

78. Duty to give information to debtor under running-account credit agreement.-

 

(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 [F1 £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.

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to in points 4,5 and 6

 

 

The Request for disclosure

 

 

 

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice and the notice of assignment. (Attached marked X)

 

9. To Date the claimant has failed to accede to my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

 

10. Notwithstanding point 7 that the claimant is not entitled as matters stand to this action. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

 

 

11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

12. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

 

13. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

14. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

 

17. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

18. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

19. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit X) unenforceable

 

 

20. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

21. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

22. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

23. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

24. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

25. Therefore since the original documents are required under the regulations stated in this defence and further more since the Civil Procedure Rules clearly set out that Original documents must be made available for inspection in practice direction 32 Para 13.1 I request that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement

 

26. If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

27. Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

The Assignment and Notice of Assignment

 

28. The claimant cites in their amended particulars that they have acquired the alleged debt by way of assignment. The defendant denies that notice of assignment as required by section 136 of the Law of Property Act 1925 has been received and the defendant puts the claimant to strict proof that the notice was served in accordance with Section 196 of the Law of Property Act 1925

 

29. For the avoidance of doubt, section 196 of the Law of Property Act 1925

196. Regulations respecting notices.

 

- (1) Any notice required or authorised to be served or given by this Act shall be in writing.

 

and

 

-(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

30. Therefore the claimant is put to strict proof that the notice of assignment was served in accordance with section 196 as laid out in point 29, should the claimant not be able to discharge the burden of proof in this matter it is averred

 

31. Further more the defendant requires that the Deed of Assignment be brought before the court for it to be scrutinized and validated as correct

 

32. In addition, the claimant states at point 4 in their particulars that that there is no need to rely upon service of a default notice in accordance with section 87(1) of the Consumer Credit Act 1974. The defendant rejects this assertion

 

33. Section 87 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

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.

And further more section 88 states

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form and specify-

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

34. Therefore the claimants statement that service of a default notice is not required is clearly in error of law and the above sections of the Consumer Credit Act 1974 clearly sets out that service is a requirement and the defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

 

35. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

Failure of the Claimant to supply a sufficient letter before action

 

36. The claimant has in the defendants opinion failed to conduct themselves in accordance with the Civil Procedure Rules insofar that they failed to issue a letter before action compliant with the CPR preaction protocols which state

4.3

The claimant's letter should -

(a)

give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

 

(b)

enclose copies of the essential documents which the claimant relies on;

 

©

ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

 

(d)

state whether court proceedings will be issued if the full response is not received within the stated period;

 

(e)

identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

 

(f)

state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

 

(g)

draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

37. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

38. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

39. Additionally since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act 1974 as stated this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974

 

40. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

41. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

42. I respectfully ask the permission of the court to amend this defence if / when the claimant provides full disclosure of the requested documents and allows inspection of the original documents

 

43. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

:

 

 

 

 

 

 

Statement of Truth

 

 

I XXXXXXXX, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

Also check out this link http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html#post258846 which refers to section 85 of the Act and credit card tokens being reissued which requires re-issue of the original agreement.

 

Keep smiling!

T

[Basil Fawlty]

Dont forget, that they need to supply an actual copy of the document under Subject Access Request.

Is that absolutely 100% vint? I'm sure I've read many times on here that they dont send an actual copy via a SAR.

 

BF

[the_shadow]

 

Dont forget, that they need to supply an actual copy of the document under SAR.

 

There are exceptions to this vint, and I believe they can transcribe the agreement to a sheet of A4 if they so wish, the DPA is about information not format of said info.

 

S.

[spartathisis]

I only ever sent SAR out to my creditors and all complied, though with varying responses ie app form, illegible CCA and non whatsoever as they admit they had nothing! A SAR should yield everything they hold on you inc the CCA, but on another thread it was stated that if you dont request through s78 then you cant put into dispute!? I have with no problems apart from the likes of RBS and Cabot totally ignoring all my letters, no change there then.

[spartathisis]

Terrier 7, couldnt you have found a bigger thread for me to go through:)

 

Will start going through it this evening, what was the outcome. It initially raises interesting points so would like to know.

 

This thread, started in 2006, mentions how poor the OFT are so things really dont change do they?

[PriorityOne]

I only ever sent SAR out to my creditors and all complied, though with varying responses ie app form, illegible CCA and non whatsoever as they admit they had nothing! A SAR should yield everything they hold on you inc the CCA, but on another thread it was stated that if you dont request through s78 then you cant put into dispute!? I have with no problems apart from the likes of RBS and Cabot totally ignoring all my letters, no change there then.

 

You can raise a dispute through a SAR, but can only place an account "in dispute" legally through the CCA. The SAR on it's own won't legally prevent a creditor/DCA from instigating court action, so it cannot be used as part of a Defence in the way a CCA default can.

[vint1954]

There are exceptions to this vint, and I believe they can transcribe the agreement to a sheet of A4 if they so wish, the DPA is about information not format of said info.

 

S.

I was fairly sure of my facts there, but stand to be corrected obviously.

 

If that is the case, then the only time that we can reasonably expect to see an agreement is at court stage, as they all ignore CPR 31.16.

[Basil Fawlty]

I was fairly sure of my facts there, but stand to be corrected obviously.

 

If that is the case, then the only time that we can reasonably expect to see an agreement is at court stage, as they all ignore CPR 31.16.

 

 

Yep. Seems to be that way.

To me, this judgement is saying, dont bother with s78, you wont get anywhere with it, so the only way is to stop paying (in the meantime ruining any credit rating you had, not that I care personally), and either let them take you to court, where they have to provide the agreement, or let it run the 6 years if they dont have anything.

 

Keeps a lot of cases out of court I suppose.

 

BF

[vint1954]

Yep. Seems to be that way.

To me, this judgement is saying, dont bother with s78, you wont get anywhere with it, so the only way is to stop paying (in the meantime ruining any credit rating you had, not that I care personally), and either let them take you to court, where they have to provide the agreement, or let it run the 6 years if they dont have anything.

 

Keeps a lot of cases out of court I suppose.

 

BF

As it appears that s77 - 79 are going down the route of information only, that is probably why the OFT issued guidelines that the OC must state if they do not have the original or that it is unenforcable, if supplying a reconstruction.