BRYAN CARTER; Northampton CCBC

[sickboy]

Please help! any advice very much appreciated.

 

I was made redundant before things became difficult. To make it worse I now think that payments made after should have been covered by the loancare insurance . I did make a complaint to the OC asking for further details of the loancare or repayment of the premium and associated interest. This was back in August last year when it was all driving me up the wall.

 

I received a claim form recently, the claimant is the OC and the address for sending documents and payments Bryan Carter. The POC are as follows:

 

The claimant's claim is for the balance due under an agreement which is now due and payable.

 

The defendant agreed to pay monthly installments under the account number XXXX but has failed to do so.

 

And the claimant claims the sum of XXXX.

 

The claimant also claims interest thereon pursuant to s.69 county court act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to XXXX.

 

It is for an unsecured personal loan regulated by CCA1974. I have received two default notices for this account.

 

So far i've had to deal with field operations, KPR who made me mad and then Fredrickson/Bryan Carter who i have just ignored until now.

 

edit* I've uploaded the two defaults from the OC and the cca. First default is 07/08 and the second is 10/08.

 

 

 

thanks

 

sick

Edited April 23, 2010 by sickboy

[Nagasis]

What is the date of the claim form?

 

Have you acknowledged the claim online yet and have you stated to defend in full?

 

You need to send a cpr 31.14 to carter straight away

 

both default notices are ineffective as they both do not give 14 days clear to remedy even if sent 1st class. A DN requires 14 clear days after service.

 

The 1st DN:

First class remedy date: 29th July 2008

Second class remedy date: 31st July 2008

Both are after the remedy date given of 25th July 2008

 

2nd DN:

First class remedy date: 13th Oct 2008

Second class remedy date: 15th Oct 2008

Both are after the remedy date given of 9th Oct 2008

[42man]

Some excellent advice from Nagasis...have a read here - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html although the particulars are quite vague and do not mention defaults, termination etc....it might even be worth sending the CPR18 also - http://www.consumeractiongroup.co.uk/forum/legal-issues/148845-bryan-carter-received-summons.html#post1573418

 

Then have a look at this

 

"QUOTE" - I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

THe user should submit a defence based on the same argument but then ask for a strike out with the AQ. That way, there is no need to make an application and shell out £40.

 

-------------------------

 

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

 

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

 

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

 

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

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

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

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

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

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

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

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

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

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

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 87. Need for Default Notice

 

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

 

(a) to terminate the Agreement, or

 

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

 

© to recover possession of any goods or land, or

 

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

 

(e) to enforce any security.

 

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

 

Section 88. Contents and effect of Default Notice

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

-------------------------------

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

[sickboy]

Nope i haven't done anything yet. Should i acknowledge the claim online asap?

 

I will send off a cpr request tomorrow, is recorded or special delivery best?

 

thanks

 

sick

Edited February 19, 2010 by sickboy

[42man]

You need to acknowledge receipt of the claim within 14 days of the date on the claim form....if you wish to defend all then state that, you then get a further 14+3 days in which to submit your defence...

[sickboy]

Ah ok!

 

Is it worth sending off a SAR request for all of the information too?

 

edit* sorry if i get a little confused. The cpr 18 looks good so i'll ping that off tomorrow. Thankyou

Edited February 17, 2010 by sickboy

[palomino]

The response to DSAR can legitimately take 40 days so this is outside your timeframe. Once a claim has been lodged the CPR route is the way to go.

[sickboy]

Thanks palomino! I understand that now.

 

Ty 42man! i will double check with the courts about the dates.

 

Cheers Nagasis! I guess is the default notice is the reason for the time taken to claim and the POC.

 

Time to check out the other threads and wait I guess.....

 

sick

[sickboy]

I have a question regarding termination of an agreement. The covering letter for the default clearly states the balance, arrears and charges (nil).

 

I enclose a Default Notice that should be read carefully.

 

Please pay the total balance immediately. To make a payment by card please call us on the above number.

 

As this is not in keeping with a live agreement could this be considered as termination of the agreement?

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

thanks

 

sick

[sickboy]

No response yet...................

 

Do i need to do anything once the 7 days are up for the 31.14 request?

 

thanks

 

sick

[diddydicky]

am i missing something?

 

how did nagasis comment on the two DN's in post no 2 when they are not detailed in post number one??

[sickboy]

Sorry thats my fault. I tried to scan/upload the docs but the links weren't working. I edited post one so hopefully they work fine now

[sickboy]

The terms and conditions are a bit small so i've typed what i consider the relevant part.

 

Right to Demand Earlier Payment

 

If any amount payable by you is overdue for more than fourteen days or if any statement or representation made by you in the course of applying to enter this agreement is found to be incorrect then you shall, if we so demand by written notice, immediately pay to us us the required amount to settle this loan. If you have fallen behind with your payments we may pass information about what you owe us to a credit reference agency. We will give you at least 28 days notice before we do this. Credit reference agencies record this information which may be seen by other companies you may apply for a loan or credit and this may affect your ability to get credit.

Edited February 26, 2010 by sickboy
oops forgot "pay"

[sickboy]

Just to add on this, before the claim I received a letter stating that the loan and where applicable security/rights/documentation have been transferred from the claimant. Not sure but perhaps the claimant can't even make a claim.........

[diddydicky]

If any amount payable by you is overdue for more than fourteen days or if any statement or representation made by you in the course of applying to enter this agreement is found to be incorrect then you shall, if we so demand by written notice, immediately to us us the required amount to settle this loan. If you have fallen behind with your payments we may pass information about what you owe us to a credit reference agency. We will give you at least 28 days notice before we do this. credit reference agencies record this information which may be seen by other companies you may apply for a loan or credit and this may affect your ability to get credit.

 

total ballcocks

[sickboy]

That's what i thought Diddy!

 

I've received a typical response from Mr Carter. I feel a complaint coming on......

 

 

With reference to the crp31.14 letter should i send off an application to the court asap?

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

thanks

 

sick

[diddydicky]

a cpr31.14 request is for production of documents that are mentioned or referred to in the particulars of claim

 

if there are documents that are germain to but not included in the POC (DN is usually not mentioned) then you send a seperate cpr18 request for those documents and give them 7 days to respond

[sickboy]

Thanks Diddy!

 

Yes they received both requests (proof filed safely away) and the response was that the matter has been referred to our client and the account placed on hold.

 

The CPR31.14 request is 7days(or agree extension) and CPR18 is 14days. Failure for a cpr31.14 request or to agree an extension and I make an application to the court etc. I don't want to miss anything out

 

I'll phone the court on Monday to check the dates and see what's going on.

[diddydicky]

sorry, i did not read the thread again- i had presumed that they had issued a claim?

 

you cannot make CPR31.14 cpr18 requests unless they have

 

and if they have they cannot put anything "on hold" as they say- if they do not respond i would make an application to the court to force them to comply

 

the creditor should NOT be starting legal proceedings if he has not got the documents to show a cause of action

[sickboy]

No! thanks for responding

 

Yes I have acknowledged service of the claim. I will have look around at what others have done with regards to an application to the courts.

 

Perhaps i'll send another letter off to Mr Carter to see what his response is.

[sickboy]

Just an update as I still haven't recieved anything of any susbstance in response to my cpr 18 & 31.14 letters.

 

But i do need to take action before the date my defence has to be filed.

 

So (correct me if i'm wrong) I need to use a n244 and ask the court for disclosure of the documents and a suitable time extension in order to file my defence. The evidence to support my application is my cpr letters and the response from the solicitors.

 

Should i also point out the vague POC and ask for a properly pleaded claim?

 

Thanks

 

Sick

[sickboy]

Hi

 

I need to send something off tomorrow and just wanted some advice as whether to ask for the application to be dealt with at a hearing or without.

 

Would it be best to make an application for and order to disclose at this stage along with a time extension?. Then ask for the claim to be stuck out if they don't comply.

 

Are there any manure spreaders for hire in the Weybridge area

 

thanks

 

:S

[sickboy]

Please help!

 

I phoned the court but my application hasn't been processed yet......

 

They said that there was a backlog but normally applications with payment get processed on the same day as receipt. Gonna call them back later to check the status again.

 

The clerk said that I should file a defence, suggesting an embarrassed plea. I'm gonna keep my fingers crossed that it goes through.

[sickboy]

I have an order, disclosure must be heard on notice to the claimant.

 

the creditor should NOT be starting legal proceedings if he has not got the documents to show a cause of action

 

Received a response for the solicitors with a copy of the agreement and a statement of the account. No terms & conditions or default notice.

 

Going to check over the cpr rules again.

[DonkeyB]

Carter will normally try and obfuscate in the hope that a small claims track will be assigned - then he will discontinue and avoid costs. Is the amount suitable for small claims?

 

You need to write a strongly worded letter to Carter demanding the other documents, and copy it in to the court.

 

Unfortunately the earlier links to your CCA and DNs is not working. Can they be re-posted?