Cabot / morgans on Goldfish card - Help With Disclosure - ***WON***

[emandcole]

Excellent, thank you so much for this!

 

Could you explain the "The claimant by way of counterclaim has no Locus Standi" statement; what does this mean? Sounds really good so I want to know what this means in case I can use it somewhere! :D

 

Thanks again,

 

Colin.

 

I am now the claimant having seen them off and them discontinuing. However, as the claim is on the back of their claim (counterclaim) I am now the claimant by way of counterclaim and they logically would be the defendant by way of counterclaim.

 

Locus standi

The right of a litigant to act or be heard.

It has been called "one of the most amorphous concepts in the entire domain of public law".

In common law the litigant has locus standi if a private right is interfered with; in statute law the right is conferred by the statute. For example, in Boyce v Paddington Borough Council (1903), the claimant Boyce had a private right of access interfered with by the Council and consequently suffered special damage, he therefore had a special interest in the subject matter of the action and had locus standi.

Conversely, R v Secretary of State for the Environment, ex parte Rose Theatre Trust co (1990) the remains of the Rose Theatre, which had seen the first performances of works by Shakespeare and Marlowe, were discovered during redevelopment works in the London Borough of Southwark. The applicant, whose members included distinguished archaeologists and actors, was formed in order to campaign for the protection of the remains, the group did not have sufficient interest and therefore no locus standi.

 

 

Cheeky sods I thought. Like a DCA has any more Locus Standi than me. At least my argument adds up .

[colin21958]

Afternoon all. This is a good one isn't it? Colin, it seems obvious that the comments posted will leave you in little doubt as to the credibility of the claim made .

 

Have added the following for you in anticipation that the application form you have is incorrectly titled with regard to the type of credit. It's self explanatory and as many running credit application forms are headed as Credit Agreements and not Credit Card Agreements this might be handy.

 

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

.

 

Just checked this and YES it is!!! It says "Credit Agreement..."

 

It gets better and better! :D:D

[colin21958]

Hi Colin,

 

thanks for your pm.. you are now a further post light on this thread.. (#58) which has been returned to the original thread.

 

Thank you very much citizenb, I am fairly sure its all back the way it should be now! Well done!

[colin21958]

I am now the claimant having seen them off and them discontinuing. However, as the claim is on the back of their claim (counterclaim) I am now the claimant by way of counterclaim and they logically would be the defendant by way of counterclaim.

 

Locus standi

 

The right of a litigant to act or be heard.

 

 

 

It has been called "one of the most amorphous concepts in the entire domain of public law".

 

 

 

In common law the litigant has locus standi if a private right is interfered with; in statute law the right is conferred by the statute. For example, in Boyce v Paddington Borough Council (1903), the claimant Boyce had a private right of access interfered with by the Council and consequently suffered special damage, he therefore had a special interest in the subject matter of the action and had locus standi.

 

 

 

Conversely, R v Secretary of State for the Environment, ex parte Rose Theatre Trust co (1990) the remains of the Rose Theatre, which had seen the first performances of works by Shakespeare and Marlowe, were discovered during redevelopment works in the London Borough of Southwark. The applicant, whose members included distinguished archaeologists and actors, was formed in order to campaign for the protection of the remains, the group did not have sufficient interest and therefore no locus standi.

 

 

Cheeky sods I thought. Like a DCA has any more Locus Standi than me. At least my argument adds up .

 

Right, thanks for explaining that for me. I think I understand now!

[Guest]

.........Have just had a question from the court asking how a DCA is now liable for the actions of the previous creditor. Will of course point them to the OFT ruling on rights and duties and that an assignee is the creditor in every way.... hi emandcole, can you 'point' me to the ruling/info you mention on this. many thanks.

 

 

thanks (apologies for 'hijacking' a post colin!)

[colin21958]

thanks (apologies for 'hijacking' a post colin!)

 

Hi Ford,

 

Don't be silly; I was going to ask emandcole the same question too; just hadn't got around to it yet! So, thanks...

 

Colin.

[Guest]

Hi Ford,

 

Don't be silly; .........

 

Colin.

 

hi, i was just being polite

Edited May 28, 2010 by Ford
typo

[emandcole]

Yep!

Edited May 28, 2010 by emandcole
Text editor going weird...can't edit

[emandcole]

You need to rely on the OFT publication entitled:

 

Guidance on sections 77/78/79 of the Consumer Credit Act 1974, which states in point 2.4 that:

The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

It is further the OFT’s view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement.

If the defendant contends that it purchased the rights but not the duties of any agreement, the defendant is reminded that s.189 of the Act is perfectly clear that an assignment is of both rights and duties.

So, powerful stuff and something the DCAs will be chuffed about. Clearly it would be unfair to allow a DCA to enjoy the benefits of an assignment (Collecting sums they've paid maybe 5p - 10p in the pound for) without also holding them responsible for any problems or breaches. The OFT guidance is specific then, the new owner is for all purposes considered to be the creditor.

 

If the DCA is unwilling to shoulder this potential burden then they should not buy the debt. No-one forces them to.

 

Thought for the day?

 

 

If more people started counterclaims against the DCAs (for unlawful rescission typically and breach of data protection with the registering of invalid DN's) who subsequently discontinue when a good fight is put up it would drastically influence the debt purchasing market.

 

 

 

[emandcole]

You need to rely on the OFT publication entitled:

 

Guidance on sections 77/78/79 of the Consumer Credit Act 1974, which states in point 2.4 that:

The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

It is further the OFT’s view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement.

If the defendant contends that it purchased the rights but not the duties of any agreement, the defendant is reminded that s.189 of the Act is perfectly clear that an assignment is of both rights and duties.

So, powerful stuff and something the DCAs will be chuffed about. Clearly it would be unfair to allow a DCA to enjoy the benefits of an assignment (Collecting sums they've paid maybe 5p - 10p in the pound for) without also holding them responsible for any problems or breaches. The OFT guidance is specific then, the new owner is for all purposes considered to be the creditor.

 

If the DCA is unwilling to shoulder this potential burden then they should not buy the debt. No-one forces them to.

 

Thought for the day?

 

If more people started counterclaims against the DCAs (for unlawful rescission typically and breach of data protection with the registering of invalid DN's) who subsequently discontinue when a good fight is put up it would drastically influence the debt purchasing market.

 

 

 

[colin21958]

You need to rely on the OFT publication entitled:

 

... In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

 

agreed? Is this what novation means, that the debtor agrees to the substitution of the creditor? I didn't think the debtor got any say in the matter!? :?

 

Nobody ever asked me if I minded!

 

Is this only where there is no legal assignment?

 

Colin

[emandcole]

Nobody ever asked me if I minded!

 

 

Glad you noticed that bit. I've been looking into this over the last 3 weeks or so as no-one is ever asked what they feel about having their account passed over to a DCA employing a load of adolescents who can't find a proper job.

 

I mean, how good would you feel each day sending out threats and nonsense to a range of people in society, many of whom are perhaps vulnerable and unsure of their rights? The 'I'm just doing my job' excuse doesn't cut it.

 

You couldn't pay me enough to do that I tell you :-|.

[Guest]

You need to rely on the OFT publication entitled:

 

 

Guidance on sections 77/78/79 of the Consumer Credit Act 1974, which states in point 2.4 that:

 

The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

 

It is further the OFT’s view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement.

 

If the defendant contends that it purchased the rights but not the duties of any agreement, the defendant is reminded that s.189 of the Act is perfectly clear that an assignment is of both rights and duties.

 

So, powerful stuff and something the DCAs will be chuffed about. Clearly it would be unfair to allow a DCA to enjoy the benefits of an assignment (Collecting sums they've paid maybe 5p - 10p in the pound for) without also holding them responsible for any problems or breaches. The OFT guidance is specific then, the new owner is for all purposes considered to be the creditor.

 

If the DCA is unwilling to shoulder this potential burden then they should not buy the debt. No-one forces them to.

 

 

Thought for the day?

 

 

If more people started counterclaims against the DCAs (for unlawful rescission typically and breach of data protection with the registering of invalid DN's) who subsequently discontinue when a good fight is put up it would drastically influence the debt purchasing market.

 

thanks for that info emandcole.

[Guest]

Glad you noticed that bit. I've been looking into this over the last 3 weeks or so as no-one is ever asked what they feel about having their account passed over to a DCA............. :-|.

 

novation requires consent, assignment doesn't!?

[colin21958]

novation requires consent, assignment doesn't!?

 

Well that's what I was wondering...:?

[Guest]

Well that's what I was wondering...:?

 

technically, assignment doesn't require consent of the 'debtor'.

but there is also of course the issue where there is an unlawful termination (eg invalid dn) and whether assignment can take place in such circumstances!

[colin21958]

Well, of course it can take place, but it would be like them buying a bag of apples and then opening it to find no apples inside, wouldn't it. The account, if terminated, still exists I suppose, but would have no value (except to some greedy unsuspecting DCA who can't be bothered to check the details of the goods he is purchasing!)

 

Caveat Emptor is the legal term isn't it?

[Guest]

Well, of course it can take place, but it would be like them buying a bag of apples and then opening it to find no apples inside, wouldn't it. The account, if terminated, still exists I suppose, but would have no value (except to some greedy unsuspecting DCA who can't be bothered to check the details of the goods he is purchasing!)

 

if the alleged agreement has been rescinded for breach then there is no 'contract' to assign! (but of course they think that they are omnipotent and will do as they please)

[colin21958]

if the alleged agreement has been rescinded for breach then there is no 'contract' to assign! (but of course they think that they are omnipotent and will do as they please)

 

Yes, that was the point I was making!

 

They (DCAs) will blindly "buy" contracts which no longer exist without caring whether or not there is anything to claim on, and will then claim regardless!

[freethemice]

Wander if the dca's could claim their money back under the sale of goods act. If we bought a dvd to find only a housebrick inside we would soon complain.

[colin21958]

Wander if the dca's could claim their money back under the sale of goods act. If we bought a dvd to find only a housebrick inside we would soon complain.

 

Yes I'm certain they could, but do we care?:grin:

[colin21958]

The date stated on the court order for providing copies and inspection of documents has now well passed. It is clear that the OP are not going to comply. I have applied to the court for an order compelling them to comply and in default that they strike the claim out. However, know what the courts are like (from reading all the posts on here that I have read) I am sure that they will somehow manage to continue with their claim. I want therefore to prepare myself for this during thi week (as I have a week off work it seems like the most sensible thing to do).

 

I know if it goes ahead I will need to ask the court to accept an updated defence as I didn't really submit much at the outset (didn't know what I was doing!). I have therfore started putting this together. However, after reading back through it I think what I have probably written is something more closely resembling a witness statement! So, not really knowing the difference exactly, I would appreciate some help with this. The "defence" I have written so far is as follows, any help/suggestions/comments graefully received :

 

In the COLCHESTER COUNTY COURT

Claim number XXXXXXXX

 

Between:

 

CABOT FINANCIAL(UK) LIMITED - (The Claimant)

 

AND

 

XXXXXXXXXXXXXX - (The Defendant) LITIGANT IN PERSON

 

DEFENCE

Introduction

The defendant responds to the Particulars of Claim hereafter in the order laid out by the Claimant. However, their Particulars of Claim leave some question as to what they claim and under what authority they claim it. Various correspondences with the Claimant in an attempt to clarify this issue have produced conflicting arguments and claims from the Claimant which have only served to confuse matters further. Clarification is required as to what the claim is for and what authority they feel they have to make this claim. My defence below responds to the various (sometimes conflicting) arguments they have put forward in these communications.

 

 

Notices of Assignment

 

1. The Claimant claims a sum of money which they claim is due under a credit agreement which was originally with Goldfish Bank Ltd.

 

 

2. The Defendant has received no Notice of Assignment informing of the assignment of this account to Cabot Financial (UK) Ltd and puts the Claimant to strict proof to show that a Notice of Assignment was sufficiently served on the Defendant in accordance with the Law of Property Act 1925. In default of which Defendant asserts that the Claimant has no legal status to bring this claim.

 

 

3. Furthermore the application form which the Claimant apparently relies on as an agreement shows the parties to the future agreement as the Defendant and HFC Bank plc.

 

 

4. The Defendant has received no Notice of Assignment regarding any assignment of the account to Goldfish Bank Ltd from HFC Bank plc and puts the Claimant to strict proof to show that a Notice of Assignment was sufficiently served on the defendant in accordance with the Law of Property Act 1925. In default of which the Defendant asserts that the Claimant has no legal status to bring this claim.

 

 

5. The Claimant has provided a "Representation" of a Notice of Assignment between themselves and Goldfish, but has failed to provide a copy of the original and has also provided no copy or representation of any Notice of Assignment between HFC Bank plc and Goldfish Bank Ltd. Also when asked to provide proof of sufficient service of the Notices of Assignment, they responded in a manner which indicates that they feel the clear statements in the Law of Property Act 1925 with regard to the Notice of Assignment being "sufficiently served" somehow do not apply to them.

 

 

6. "Sufficiently served" in point 2 above, point 4 above and point 5 above is as described by Section 196(4) of the Law of Property Act 1925:

196. Regulations respecting notices.

(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 [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.

 

 

7. It is noted that by Section 1 of the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g., Royal Mail recorded delivery or special delivery)."

 

 

8. i.e., if posted, this proof must take the form of a postal receipt showing the posting of a registered letter within the meaning of these Acts, which would have contained this document. In their letter dated xx/xx/10 the Claimant has inferred that a Notice of Assignment was sent by ordinary post. However, this would clearly not be "sufficiently served" in accordance with the law as discussed in point 6 above. Indeed as it was never received, unless the Claimant can prove otherwise, it was not served at all.

 

 

9. The Claimant has failed to provide copies of any Notices of Assignment requested in a CPR 31.14 request dated xx/xx/10 sent to the Claimant by recorded delivery and another in a letter dated xx/xx/10 and sent to the Claimant by recorded delivery on xx/xx/10. It is therefore pleaded that in default of providing proof as demanded in points 2 above, point 4 above and 5 above the Claimant has no legal status to bring this claim.

 

 

10. It is denied that the Defendant has failed to make payments in accordance with the terms of the agreement. Indeed payments were suspended due to the disputed status of the account as is permitted under s78 (6). Please refer to point 22 below.

 

 

11. The account remains in dispute to this day due to the Claimant’s breach of s78(1) a point which the Claimant has consistently ignored. The Claimant has also failed to remedy this breach following a CPR 31.14 request for documents which included this document. Since the original s78(1) request was made for this document on xx/xx/09 the Claimant has clearly committed an offence as described in s78(6), please refer to point 2222 below.

 

 

12. This CPR 31.14 request was issued in a letter dated xx/xx/10 and sent to the Claimant by recorded delivery on xx/xx/10; no documents were provided in response to this request.

 

 

Amount Claimed

 

13. The Claimant claims the amount of £xxxx.xx as stated in the Particulars of Claim. This amount is challenged by the Defendant as there is no explanation of how this figure is arrived at. The Defendant therefore puts the Claimant to strict proof to show how they have arrived at the figure shown on the Particulars of Claim.

 

The Credit Card Agreement

 

14. The Claimant claims that this alleged debt is under an agreement which was originally with Goldfish Bank Ltd. However, the document which they now assert is a copy of the original agreement appears to be merely an illegible application form and an illegible page of Terms and Conditions which are not referenced by the application form and on which the parties are quoted and the Defendant and HFC Bank plc.

 

 

15. The Defendant received a letter on xx/xx/09 in response to a s78 CCA request letter posted to Goldfish Bank Limited on xx/xx/09 which was accompanied by a photocopy of what appears to be a very poor quality scanned version of an application form dated xx/xx/99 on which the Defendant’s name had been handwritten and pre-typed. This application form indicates HFC Bank plc as the other party to any subsequent agreement. This document is barely legible in its entirety.

 

 

16. This application form and the document entitled "Terms and Conditions" were provided firstly with the Claimant’s letter of xx/xx/09. The Claimants then sent another copy of the same documents with their letter dated xx/xx/09; this letter also contained another two blank agreements with completely different terms and conditions which bear little resemblance to this document; no explanation of what these were was provided. Then the Claimants provided a further illegible copy of the application form and terms and conditions with their letter dated xx/xx/10 and yet another with their letter dated xx/xx/10. However, despite numerous requests for a legible copy of a properly executed credit card agreement between the Defendant and Goldfish Bank Ltd, the document which they claim meets this requirement is in fact is a mostly illegible copy of an application form and a totally illegible copy of terms and conditions which are in no way connected to the application form.

 

 

17. In their letter dated xx/xx/10 the Claimants claimed that "on the balance of probabilities, the Terms and Conditions provided by the Assignor were on the second page of the Credit Agreement". However, if this were to be the case then it should be possible to find some reference to them in the application form document, however, no such reference exists. A reference to a "Conditions of Use" document can be made out on the document, but this document was never supplied. Since this reference to the "Conditions of Use" exists on the application form the Defendant would suggest that "on the balance of probabilities" this was the document which may have been on the back of the form, if indeed anything was; however, there is no clear evidence that this, or indeed any other document was on the back as there is no legible reference to the "back" or "overleaf" etc.

 

 

18. It is therefore clear that this application form could not possibly represent a properly executed credit agreement. It is also clear that it is not enforceable by way of s127 as it contains none of the required terms.

 

 

19. A legible copy of the agreement document was requested under two separate CPR 31.14 requests in letters dated xx/xx10 and xx/xx/10 but the Claimant failed to reply to that request within the specified time and indeed at all. The court order dated xx/xx/10 in which District Judge Molle ordered for any request for any copy, or inspection of any document, be complied with by 4:00pm on Friday xx/xx/10. The Claimant did not provide copies of documents requested, nor did they respond to my CPR31.15 request to inspect the original agreement. The Defendant is therefore at the disadvantage of having not had sight of a legible copy of the original agreement or indeed the original itself.

 

 

20. The copy of the agreement provided and also the "Terms and Conditions" supplied are not "practicable to refer" by way of being largely illegible, yet the Claimant has claimed in several letters that these documents are not illegible and has failed to provide legible copies.

 

 

21. The application form provided refers to a document entitled "Conditions of Use", however, the Claimant failed to provide a copy of this document in response to the Defendant’s s78 CCA 1974 request.

 

 

22. The Consumer Credit Act 1974 in section 78 clearly states that:

78. (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 [£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.

(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

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

 

 

23. Also the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 state in section 2:

2 . Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

24. The account is clearly in dispute due to the Claimant’s default under s78(1) due to their failure to provide easily legible documents and also failing to provide copies of all documents referred to in the "agreement" document, and the Claimant is therefore by way of s78(6) CCA 1974 not legally entitled to bring this claim against the Defendant until such time as s78 has been fully complied with. The Claimant has continued to ignore the disputed status of the account and has continued to add interest and charges whilst the account is in dispute contrary to s78(6) as shown in point 22 above.

 

 

25. The "agreement" is not properly executed as defined in s61(1) CCA 1974 due to the all the prescribed terms being missing:

s61(1). A regulated agreement is not properly executed unless: (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied terms

 

 

26. The "Prescribed Terms" here being as defined in The Consumer Credit (Agreements) Regulations 1983 ("the Agreements Regulations") in Schedule 6.

 

 

27. This is also supported by Case Law in Wilson and another v Hurstanger Ltd (2007) where the Judge Lord Justice Waller said in paragraph 33 that:

"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 section 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. This agreement was made before 6th April 2007 and is therefore unenforceable by the Court by virtue of s127(3) CCA 1974. i.e.:

s127(3) The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner).

 

 

Default Notice and Termination

 

29. The Defendant has received no Default Notice as required by S87 CCA 1974 before any enforcement action can take place. Enforcement action includes demanding sums which are due at some point in the future.

 

 

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

 

 

31. In their letter dated xx/xx/10 the Claimant has claimed that they "are not statutorily bound to send you a default notice. The reason for this is because firstly they are not the Creditor under the Consumer Credit Act 1974 and secondly because the circumstances stipulated under the Act as to when a Default Notice must be sent out are not applicable in this instance. The Assignor chose to assign your account pursuant to term 12 of the terms and conditions as their remedy in this situation."

 

 

32. However, the Consumer Credit Act 1974 is clear that the ONLY provision for taking action as a "Remedy" is by acting in accordance with S87 and issuing the debtor a Default Notice in accordance with s88. There is NO other provision for taking action to demand early payment or terminating an agreement without following the requirements of s87 and s88.

 

 

33. The fact that the Claimant mentioned a "Remedy" in their letter implies that they acted in response to some "Default" as there can be no "remedy" allowed or required unless some "default" has taken place which requires a remedy. If a Default has taken place then before any "remedy" can take place the Creditor MUST issue a Default Notice to the Creditor explaining the default, what the debtor can do to remedy the default and by which date they must effect this remedy.

 

 

34. As to the Claimant’s claim that they are "not the Creditor...", it appears the Claimant is suggesting that rights of assignment are limited entirely in favour of the Claimant and relate only to the advantages, with none of the disadvantages attached. The Defendant would rely on the OFT publication entitled Guidance on sections 77/78/79 of the Consumer Credit Act 1974, which states in point 2.4 that:

"The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

It is further the OFT’s view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement.

If the claimant contends that it purchased the rights but not the duties of any agreement, the claimant is reminded that s.189 of the Act is perfectly clear that an assignment is of both rights and duties.

 

35. In their letter dated xx/xx/10 the Claimant now claimed that the reason they feel that s87 and s88 do not apply to them was because "as the Assignor had set the credit limit at zero... they were entitled to immediate repayment of any amount in excess of that. The Claimant being the assignee of the contractual benefits is equally entitled to claim for the same". The Defendant refutes this claim as a blatant attempt by the Claimant to mislead. It is clear that under the terms of the Consumer Credit Act 1974, no demand of early payment is permitted except when the debtor defaults on the agreement, and even then the creditor’s remedy of terminating the account by demanding the full balance (which would include payments not due yet under the terms of the agreement) can only be exercised after following the requirements of s87 and s88; i.e., they would need to issue a valid Default Notice and comply with the terms of that Default Notice before terminating the account.

 

 

36. 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.

 

 

37. To contend, as the Claimants do, that merely setting the credit limit to zero makes the full balance available to them is to try to side step or circumvent the statute. This is clearly an attempt to mislead the Defendant and there can be no legal claim for this right of action. If the Claimant still contends that this course of action has its basis in statute or Case Law then the Defendant puts them to strict proof in support of their contention.

 

 

38. 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.

 

 

39. The Claimant’s failure to issue a 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.

 

 

40. The Claimants have terminated the account and this Unlawful Rescission of the contract was accepted by the Debtor in a letter dated xx/xx/10 when it became clear that the account had indeed been terminated without any Default Notice having been issued. Due to the Unlawful Rescission of the agreement the Claimant has no basis for bringing this claim.

 

 

41. Finally, this unlawful rescission cannot be remedied by simply issuing a Default Notice. The Claimant may not now serve an effective default notice in prescribed form post-termination of the agreement. Any such default notice will necessarily state a date by which the Defendant would be required to comply after which in default the agreement would terminate. This Default Notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated when the full balance was first demanded. Terminating an agreement without issuing a 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.

Edited May 31, 2010 by colin21958

[vjohn82]

This is very much like a Witness Statement...

 

A defence is a statement of case: Statement of Case | Court Documents | London litigation law firm | Statement of Case

 

What is a defence?

 

The defence in litigation is a document of the defendant that answers or responds to the particulars of claim, which was filed by the claimant with the claim form to commence legal proceedings in English courts.

The defence must state those facts contained in the particulars of claim that the defendant denies, those that he does not admit (or is unable to admit), and those that he admits.

The Civil Procedure Rules do not permit a defendant to give a flat denial to a fact. They must give the reasons (namely, allegations of fact) as to why they deny the particular allegation, and state its own of the facts if it intends to advance one.

Where the defendant fails to respond to an allegation but does not set out their case in respect to the allegation, they are taken to have admitted the matter, unless the fact relates to an allegation pertaining to a sum of money claimed.

When the defendant claims that they are entitled to money from the claimant, they may plead a set off against the claim, ie reduce to the sum claimed by the claimant by the sum said to be owed to them.

The defence must be verified by a statement truth.

The claimant may file a reply dealing with allegations set out in a defence.

 

Defence | UK litigation | UK law firm describes the Defence in English litigation

 

In other words long reams of law/statute etc does not constitute a good defence because this is what your witness statement is for. So save everything you have written for your WS and be content to rely upon your present defence.

[colin21958]

This is very much like a Witness Statement...

 

A defence is a statement of case: Statement of Case | Court Documents | London litigation law firm | Statement of Case

 

What is a defence?

 

The defence in litigation is a document of the defendant that answers or responds to the particulars of claim, which was filed by the claimant with the claim form to commence legal proceedings in English courts.

The defence must state those facts contained in the particulars of claim that the defendant denies, those that he does not admit (or is unable to admit), and those that he admits.

The Civil Procedure Rules do not permit a defendant to give a flat denial to a fact. They must give the reasons (namely, allegations of fact) as to why they deny the particular allegation, and state its own of the facts if it intends to advance one.

Where the defendant fails to respond to an allegation but does not set out their case in respect to the allegation, they are taken to have admitted the matter, unless the fact relates to an allegation pertaining to a sum of money claimed.

When the defendant claims that they are entitled to money from the claimant, they may plead a set off against the claim, ie reduce to the sum claimed by the claimant by the sum said to be owed to them.

The defence must be verified by a statement truth.

The claimant may file a reply dealing with allegations set out in a defence.

 

Defence | UK litigation | UK law firm describes the Defence in English litigation

 

In other words long reams of law/statute etc does not constitute a good defence because this is what your witness statement is for. So save everything you have written for your WS and be content to rely upon your present defence.

 

Hi VJ,

 

Thanks for your response. I had already figured that this was probably more like a witness statement, but wasn't sure exactly what should be in the defence and what shouldn't I will look through the link you provided to get a better idea. I feel like I need to submit an updated defence of some sort because all I submitted was a three sentence statement saying the agreement was not valid, I had not received a DN and I had not been sent a Notice of Assignment. I thought therefore that these points needed defending in a more robust way.

 

I'm not exactly sure what to leave in and what to take out, so any suggestions would be welcome. If you really think what I have already submitted (when I didn't know any better) will suffice then I will leave it, but otherwise perhaps I do need to enter an updated defence of some sort; obvioulsy not everything that I have posted here though!

 

Colin

[vjohn82]

I can give you a hand with this... but you know that to submit an amended defence you need to make an application (which I believe costs £75)?