Fluffystuff's OH v HFC

[Fluffystuff]

This is the evidence on their SJ application:

 

The first paragraph sets out what the debt is for and gives a date that the credit agreement was supposedly signed.Then they state ~

 

"Attached to this application notice is a copy of the credit agreement, pursuant to which the credit card facility was issued. The Claimant is unable to locate the original, signed Credit agreement. However, in accordance with Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, a copy of the executed Agreement has been provided which does not include information that the Claimant is permitted to exclude, such as the signatures. The first page of the original Credit Agreement would contain the completed personal details of the Defendant. On the reverse side of the original document would be the Terms and Conditions - which include the prescribed terms (as defined by the CCA 1974). The document signed by the defendant would have been a single sided document containing the prescribed terms and therefore the two pages are copies of the same double sided document."

 

They confirm they have attached a copy of the latest t&c's and the last five years worth of statements and confirm account has not been assigned.

Then state ~

 

"In view of the Defendant's inability to make the payments required under the Agreement, the Claimant issued a Default Notice. Attached is a recreated copy of the Default Notice issued by the Claimant dated xxxx. The D/N in line with the Claimant's standard procedure, was sent by way of 1st class post.(It was not and I have the envelope to prove it.) The version which the Defendant received would have complied with all requirements of the CCA 1974 and any regulations made under it."

 

They then go on to state that as claim issued via MCOL they were not able to provide any documents and -

 

"In any event, before the commencement of proceedings the Defendant received correspondance from the Claimant's solicitors advising of the nature of the liability and hence the Defendant would have been well aware of the nature of the claim.

 

The Defendant states in his defence that the Claimant's solicitor's have ignored his requests for documents pursuant to CPR31.14. This allegation is denied. The Claimant's solicitors recived a letter dated xxxx which purportedly came from the Defendant but was unsigned.This was returned to the Defendant with a request that all future correspondance be signed to confirm he was the genuine author. The Defendant was warned in this letter that any future unsigned correspondance would not be responded to or acknowledged.

 

Letters requesting documentation pursuant to CPR31.14 were not signed and as the Claimant's solicitors were not satisfied that these letters were genuinely sent by the Defendant they were not prepared to respond.

 

On xxxxx the Claimant's solicitors wrote to the Defendant and addressed the issues raised in his Defence. Copies of the documents mentioned above were sent under cover of this letter. The defendant was given the oppportunity to withdraw his Defence in order to avoid an applcation for SJ, but has not done so.

 

The Defendant has since pointed out that the recreated copy of the D/N is not an accurate copy of what he actually received and has provided a copy of the actual D/N. As can be seen, the recreated D/N and the actual are essentially the same, save for minor difference on the first page in para 3. However no prejudice has been caused to the Defendant by this minor difference and in any event the original D/N does comply with the requirements of the CCA 1974.

 

In the circumstances I do not believe the Defendant has any realistic prospect of successsfully defending the claim and the Applicant knows of no other reason why the disposal of the claim should await trial.

 

 

WRITTEN EVIDENCE AT THE HEARING, IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANTS SOLICITORS XXXXXXXXXXXX AT LEAST SEVEN DAYS BEFORE THE DATE SET FOR THE SJ HEARING. TAKE NOTICE THAT IF THE RESPONDANT TO THIS APPLICATION FOR SUMMARY JUDGEMENT WISHES TO RELY ON"

 

(The above paragraph is eactly as written therefore I shall not claim Reston's typos as my own!!!)

 

So, there we have it.

To re-cap once again, they are relying on a blank application form and admit they do not have the original agreement. The D/N is fatally flawed in that the amt claimed includes charges, it is not set out in the prescribed way and it does not give sufficient time to rectify and Restons were advised of this before they commenced action!

[Fluffystuff]

NTTF -

 

Thanks for your input. Just need to concoct a rock solid response to their statements above - was hoping that we might be able to get it struck out as it is them who have no chance of success!

 

 

Anyone have any thoughts on this?

[NewToTheFight]

if you apply for a SO & fail the cost implications are serious (check my thread, I was warned of this)

In post 6 you state it's an application form (have you uploaded it?) with "Credit Agreement regulated by the Consumer Credit Act 1974. I believe the wording should be Credit Card Agreement.....

Is the app & tcs in the correct format & with the PTs in the right places etc.

 

I would contend that you have been trying to obtain a copy of the original, they can't provide it therefore there is no cause of action. As such a SO application may be the way forward.

[vint1954]

"Attached to this application notice is a copy of the credit agreement, pursuant to which the credit card facility was issued. The Claimant is unable to locate the original, signed Credit agreement. However, in accordance with Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, a copy of the executed Agreement has been provided which does not include information that the Claimant is permitted to exclude, such as the signatures. The first page of the original Credit Agreement would contain the completed personal details of the Defendant. On the reverse side of the original document would be the terms and conditions - which include the prescribed terms (as defined by the CCA 1974). The document signed by the defendant would have been a single sided document containing the prescribed terms and therefore the two pages are copies of the same double sided document."

 

This is all very well and correct for s78 requests, but not for court!

[vint1954]

In view of the Defendant's inability to make the payments required under the Agreement, the Claimant issued a Default Notice. Attached is a recreated copy of the Default Notice issued by the Claimant dated xxxx. The D/N in line with the Claimant's standard procedure, was sent by way of 1st class post.(It was not and I have the envelope to prove it.) The version which the Defendant received would have complied with all requirements of the CCA 1974 and any regulations made under it."

 

Obviously you will argue this as being faulty.

[vint1954]

"In any event, before the commencement of proceedings the Defendant received correspondance from the Claimant's solicitors advising of the nature of the liability and hence the Defendant would have been well aware of the nature of the claim.

 

Being issued on MCOL does not mean that they should not follow on with hard copies.

[vint1954]

The Defendant has since pointed out that the recreated copy of the D/N is not an accurate copy of what he actually received and has provided a copy of the actual D/N. As can be seen, the recreated D/N and the actual are essentially the same, save for minor difference on the first page in para 3. However no prejudice has been caused to the Defendant by this minor difference and in any event the original D/N does comply with the requirements of the CCA 1974.

 

Minor difference does not matter. It is either correct or it is not.

 

Have you PM'd diddydickie?

[Fluffystuff]

Hello Vint,

 

Have just been reading up on Diddy's latest threads re; Nationwide and HFC and was just thinking that he seems to be the man to get hold of. Will try a PM as you suggest.

 

Thanks so much for stopping by and who knows I may be able to help you one day, though of course I hope you won't need it!

[rhodium78]

You will need a witness statement, stating reasons for opposing the summary judgement. It must be served on the other party at least 7 days before the hearing.

 

As they applied for the SJ, they must prepare the hearing bundle with the assistance of your solicitor if instructed which I believe you haven't got. As there has been no interaction, you should check the bundle carefully and make sure there isn't any privileged documentation between you and them. Also, check to make sure there is no missing evidence that you know should be present, and if there are omissions, bring it to their attention so they can update it. Evidence which would be relevant would be the envelope that the DN came in if it is not part of the bundle, etc. If they refuse, then make sure that copies of the envelope are available at the hearing.

 

Also consider set off (PPI/charges/etc) where a case with set off is more likely to go to trial rather than be SJed. It might be a bit late to change your defence though.

 

You can file your costs under form n260, but you must do so at at least 24 hours before the hearing.

 

How long is the hearing? Normally for hearings less than 1 hour, no skeleton argument is required but it is normally prepared for hearings lasting more than 1 hour and should be filed at least 1 day before the hearing. You would include with the skele if the hearing is more than 1 hour, a chronology summarising in date order the material facts around the claim; a reading list of the key documents that the DDJ/DJ/Master should if possible, read prior to the hearing; and a case summary of the material facts of the case; but only if this is agreed with the other side.

 

As a LiP, this really useful law etiquette is overlooked, not through the fault of the LiP but by the other side so they try and take advantage.

 

The burden of proof initially is on the other side as they applied for the SJ and if they do adduce evidence that you have no real prospect of success, then the burden of proof falls on you to prove that you have some real prospect. It is not as high as the applicant's burden and it is enough to rebut their statement by showing that you may succeed, not that you will succeed.

 

As regards a strike out application, it is most likely that if an application is filed, it will be heard at the same time as your SJ. The other caggers can give their opinion but I wouldn't go for a SO at this stage, rather let the SJ hearing get underway, and if you are successful, then invite the court to make an order for directions as to the management of the case which would be whatever documents you need, etc. The problem with a SO application is that if they do win, then your application is wasted; and if you do win, then the burden is on you for a strike out but the Court may just order directions for disclosure in itself so I would rather wait and see.

 

Then, if they don't comply, put in an application for an "unless" order and get it struck out by them not complying with the order thereafter. Just my 2 cents...

[Fluffystuff]

Thankyou Rhodium, your 2 cents are much appreciated.

 

For your info, the SJ hearing has been allocated 40 mins.

 

I have previously informed them that I have proof of posting of the D/N but have not forwarded them a copy of the envelope. I assume that I should provide this with my WS when I refute their allegation of 1st class post for which they have not provided any evidence?

 

I need to go to bed now - yes I know it's early but I've been on here pretty much all day and my head is spinning!

 

Thanks again to all of you who have contributed so far and look forward perhaps to a few more opinions tomorrow.

[diddydicky]

i am assuming (as i cant see a copy on the thread) that the DN is defective by not giving sufficient time to remedy

 

I am having to use a works computer to get online for the time being so cannot access and post my word files onto the thread so you will need to search through my posts for the "restons letter" that i refer to

 

Dear Restons

 

I refer to your comments that you consider that the "error " in the Default Notice" which does not give the prescribed 14 days after the date of service to remedy the alleged default is of no significance

 

The fact that the Default Notice is non compliant with the Consumer Credit Act prevents your client from claiming entitlement to the benefits of s87 (to terminate and/or claim immediate payment of sums not yet due under the agreement)

 

Kindly take note that This is a simple point of law which i have alerted you to.

 

I enclose a copy of your letter to XXXXX county court dated XXXXXXX in which you clearly accept and acknowedge that the failure to comply with the CCA in this respect means that your clients claim may not proceed.

 

I beleive that it is also a breach of the solicitors code of practice to argue a point in court which you know to be unarguable

 

I suggest that the proper course of action in this matter is for your client to discontinue this action

 

You may find reference to the judge's remarks in BOS v Robert Mitchell, June 2009 with respect to the claimants continuance of action in the face of such facts in which he stated that BOS came very close to an abuse of process- to be of assistance

 

In order to assist your client i am prepared to allow discontinuance without costs .

 

Should your client be minded thereafter to commence a further claim in the matter then i shall deal equally robustly with that situation as and when it arises

 

Yours sincerely

 

 

 

i also suggest that you now go through the alleged original agreement and the re constructeed agreement with a fine tooth comb looking for differences in wordings- or words in different paragraph order etc

 

if the re constructed document is a true microfiche or photocopy copy of the original- then even ONE WORD missed out or not in the same line/order will show that it could not possible be the same document that has been re created.

 

only a hand written or typed out reconstruction would be capable of not being in the correct format as the original

[Fluffystuff]

Hi Diddy,

 

You are correct in that the D/N failed to allow sufficient time, it also fails in that it is not set out in the prescribed way and the amount claimed includes charges.

I have already invited Restons to discontinue on two occasions, having sent them a copy of the D/N, explaining precisely how it is fatally flawed but they allege that it complies. I also informed them that I had retained proof of posting - 2nd class.

 

Would you still send them you letter above, perhaps with a copy of the envelope?

 

Regarding the alleged agreement, they have confirmed they do not have the original and will be relying on a blank (save for name and address in another's hand) pre-contractual application form!

 

Again I have already informed them that this is not acceptable in court, but of course they continue to ignore the facts!

 

I am in the process of preparing my WS in response to their evidence in their SJ application, will post up when able.

 

Many thanks.

Edited July 1, 2010 by Fluffystuff

[diddydicky]

i would definately send them the letter and the copy of their own letter since this could have major costs implications for them if they continue (even if they won)

 

further you should google the code of conduct for sols and pull out the clause regarding unargubale points of law

 

(i think it around the 90 -100 mark)

 

as i said i am not using my own puter so cannot cross reference to my word files

 

 

also use the search bar to find BOS v Robert Mitchell (or google it) for the judges summing up in the costs issue

[Fluffystuff]

Diddy,

 

I appreciate you are work so if you could point me in the right direction re. the 'Restons letter' later on , I would be grateful, or can you remember which of your threads it's on. Is it the letter originally sent to Robcag?

[NewToTheFight]

I think Diddy refers to the letters on Robcag's thread

[diddydicky]

yep thats it - its on robcags thread- there are 4 pages

[Fluffystuff]

Thanks to you both. x

[Fluffystuff]

Diddy,

 

Would the following paragraph be an appropriate addition to your letter above? ~

 

Your sworn statement that the Default Notice was sent by 1st class post is a clear fabrication. I have previously alerted you to the fact that I had proof of posting in my possession and for avoidance of all reasonable doubt, I now enclose a copy of both sides of the envelope containing the Default Notice.

 

(Not sure about the wording in blue?)

[robcag]

Hi Fluffystuff

 

I just read your PM asking me to post the letter in question into your thread because you were having difficulties copying it from mine. However, you will have to copy it from here if I post it!

 

All you should need to do (presuming you're using Windoze and Internet Exploder - as I am) is right-click on the particular image you want, then from the context menu which opens just choose 'copy'. That should work. Then paste it into whatever application you are going to use to print it (e.g. MS Word or Publisher etc.).

 

If you still really want me to copy it here I will do so, just let me know, but I can't see any real advantage other than giving it more publicity - which may be a good idea I guess.

 

The batch of letters I received (which were also sent by Rectums to the court) are here at this post;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-14.html#post1527558

 

You (and anybody else) are welcome to use them!

 

Cheers

Rob

[robcag]

PS

 

Check out both letters, and I have left the claim number on for verification if necessary.

 

Cheers

Rob

[Fluffystuff]

Rob,

 

For some reason my computer was refusing to copy and paste those docs, but I have now managed to print them off - must have been having a blond moment!

 

Thanks for your help.

[Fluffystuff]

Have now prepared WS - would appreciate the 'experts' taking a look for me. Would prefer, just for the moment, to send by PM if that's ok, as there appear to be a lot of 'guests' around today.

 

Let me know if you can help,please.

 

Ta muchly.

[Fluffystuff]

Have now compiled witness statement, would appreciate comments please. ~

 

1. The Claimant issued proceedings on xx/xx/10. These were not particularised as required under CPR and as such I issued a defence claiming non-sight of these documents with a request that I be allowed to file a fully particularised defence at a later date when the documents had been supplied.

 

2. Upon receipt of said claim a CPR 31.14 request (xxx/01 ) was made to the claimant’s solicitors for the following documentation to be provided to enable an amended defence to be entered. Alongside the documents listed below I asked for a statement of agreement to enter an amended defence at a later date. The documents requested were:-

i) The agreement.

ii) The Default Notice.

iii) A copy of the original terms and conditions applicable.

iiii)The termination notice.

3. I received no response to this request or to the reminder sent on 20th April 2010(xxxx/xx). A request under CPR 31.15 (xxx/xx) was also ignored. Their reason for non-compliance was that as my requests were unsigned, they could not be sure that the correspondance was genuine. Having instigated these proceedings, the Claimant must have been satisfied as to my identity and I therefore find their solicitor’s reasoning both trite and disingenious and served only to frustrate my ability to file a full defence.

4. After my defence had been filed, the Claimant’s solicitors then provided the documents referred to as xxx/xx confirming that these reconstituted copies were to be relied on in court. (xx/xxx).

5. I suggest that the Claimant’s application for summary judgement - when he is unable to supply an original , or verified copy of an executed agreement is also an abuse of process and his application must fail. Not only is the claimant seeking enforcement whilst prevented from doing so under s78 - but is seeking to do so with an agreement that even by his own exhibited admission is not an executed agreement.

6. In respect of Hearsay evidence the claimant seeks to rely upon re- constructed documents without compliance with the Documents In Court- Civil Evidence Act 1995 Inter Alia: if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to Adduce Hearsay Evidence is required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to(i) a copy of the procedure(s) used for copying, storing and retrieving documents(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.contends.

 

7. Furthermore it is my view that the sole witness for the Claimant, Miss xxxxx, is a solicitor who is not employed by the Claimant and who therefore could not be a competent witness in relation to the matters referred to above.

8. The Claimant is therefore seeking to obtain a summary judgement based on an alleged reconstructed agreement which has not been verified or challenged in any way as to its authenticity and which in any event would not be an Executed Agreement . That which the claimant has submitted to the court in XXXX/1 as being a re-constructed copy of what the agreement would have looked like (and is unexecuted agreement) is no more than a self serving attempt to construct a document which the claimant thinks might have been such an agreement and comprises of part of a pre contractual application form which has been married up with another document containing some prescribed terms.

 

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

 

9. Notwithstanding the matters pleaded elsewhere, 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.

 

10. 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."

 

11. 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

 

12. Further to point 5 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.

 

13. The Default Notice (xxx/02) supplied by the Claimant is dated 10th December 2009 (Thursday) and sent via Ukmail; an equivalent to 2nd class post. To allow service in line with the statutory requirements mentioned in points 2 & 3 above, 4 working days were required to allow for equivalent 2nd Class postage. Thus the Rectify Date should be 14 calendar days from 16th December 2010, namely 30th December 2009 , not by the 29th December 2009 as stated in the Default Notice. This assuming that the Default Notice was actually posted on the date stated on said notice.

 

14. 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 the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

15. 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.

 

16. 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).

 

17. 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.

 

18. 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…

 

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

 

20. 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.

 

21. 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.

 

22. 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.

 

23. 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.

 

24. 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.

 

25. 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 on29/12/2009. Terminating an agreement on the back of a defective Default Notice, simply confirms the undeniable truth that termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early payment of a sum that was, prior to termination, only payable in the future.

 

 

The enforceability of the Agreement

 

26. 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. These conditions are prescribed under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to being the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Inter alia, the agreement must:

properly identify the debtor by name and full postal address (Schedule 1);

 

Inform the debtor of the Protection and Remedies Available under the Consumer Credit Act 1974 to Debtors under Regulated Consumer Credit Agreements. In the present case, this means there should be a section headed "Your right to cancel" containing the required information (Schedule 2);

be signed by the debtor in a blank signature box of the prescribed form (schedule 5); and contain certain prescribed terms relating to important financial information (Schedule 6).

 

27. Commenting on the provisions of Schedule 6 in his judgment in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, TUCKEY LJ 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."

 

28. I contend that the agreement supplied does not comply with the requirements of the regulations in respect of identifying him as the debtor and does not contain any of the prescribed financial terms. This is sufficient to render the agreement unenforceable.

 

29. In this last respect, the defendant refers 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….". (my emphases)

 

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

 

And furthermore:

 

"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".

 

30. Finally, it should be noted that, in the same judgement, LORD NICHOLLS OF BIRKENHEAD, said:

 

"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 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."

 

31. The copy of the agreement provided by the Claimant is blank; save for my name and address in another’s hand.

 

32. Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, gives the prescribed (financial) terms relevant to a Credit Card agreement (agreement for running-account credit) as:

 

Credit Limit

3 Agreements for running-account credit -

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

Rate of Interest

4.Agreements for :

(a) running-account credit -

A term stating the rate of any interest on the credit to be provided under the agreement.

 

Repayments

5. Consumer Credit Agreements.

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--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) 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.

 

33. It should be noted that none of these terms are present in the Application Form provided by the Claimant.

 

34. The Terms & Conditions supplied separately by the claimant are quite clearly separate to the main application form. The requirement that "all the terms should be in a single document", and "within the four corners of the agreement" as demanded by TUCKEY LJ in Wilson and another v Hurstanger Ltd is not met.

 

35. From this and from the above judgement of LORD NICHOLLS OF BIRKENHEAD, it is clear that without a credit agreement, signed by the defendant and containing the information prescribed in the regulations, the Claimant’s claim cannot succeed.

 

I therefore request that the Court dismiss the Claimant's Application for Summary Judgement.

 

 

Statement of Truth

 

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

 

 

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

 

 

 

Dated this xx day of xxxxxx, 2010

Edited July 1, 2010 by Fluffystuff

[diddydicky]

Have now prepared WS - would appreciate the 'experts' taking a look for me. Would prefer, just for the moment, to send by PM if that's ok, as there appear to be a lot of 'guests' around today.

 

Let me know if you can help,please.

 

Ta muchly.

 

you have nothing to hide- they are going to see it soon enough anyway

[diddydicky]

Diddy,

 

Would the following paragraph be an appropriate addition to your letter above? ~

 

Your sworn statement that the Default Notice was sent by 1st class post is a clear fabrication. I have previously alerted you to the fact that I had proof of posting in my possession and for avoidance of all reasonable doubt, I now enclose a copy of both sides of the envelope containing the Default Notice.

 

(Not sure about the wording in blue?)

 

 

No, i would keep this back for the trial- the more you can discredit their evidence the better- dont give all your ammo away