Halifax Taking Me To Court

[wish me well]

Ok, after long winded battle trying not to default, it happened anyway but halifax sent a default notice dated 23rd July 2008 giving me until 24th July 2008 to rectify the breach??? I stopped paying Halifax as I could no longer afford the payments and got harrassed by Blair Oliver Scott, all went quite until I received a letter before action from Halifax Litigation dept but stupidly I ignored it as I just assumed it was another "scare tactic" how wrong I was. On the 24th March 2010, yesterday, I received a claim form from Northampton CCBC county court and I have no idea what I should do, or how to respond so that I can use this invalid default to my advantage. I desperately need some advice as the clock is ticking, it gives me 14 days plus 5 from the date of issue which as it stands today is 13 days and counting. Please please help, I dont have a scanner but if you need to see anything to help I will be more than happy to type it out word for word. God I hope someone knows what I need to do Thank you in advance.

[wish me well]

I have just read that most of the time you need the POC info so here it is word for word:

The Claimants claim is for £xxxxx presently due pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hitherto. By an agreement dated 17/3/2006 the defendant has an account number 4xxxxxxxxxxxxx with the claimant. The defendant has failed or delayed to adhere to the terms of the Default Notice issued by the claimant under the terms of the consumer credit act 1974. The balance due as at 18/3/2010 on said account is £xxxxxxx. I hope this helps in getting some replies. Once again thanks everyone.

Edited March 29, 2010 by wish me well

[seriousfred]

hello wish me well.

 

did you do a CCA request? do they have a valid copy of the agreement?

 

did they ever terminate the agreement after the default? (if not then them taking you to court will effectively do this).

 

if they did terminate you, did you accept their unlawful rescission? If not then I think this could work in your favour, as them taking you to court now should act as termination so you should be able to accept their unlawful rescission and hence only owe arrears on the default notice rather than the full amount they are claiming (plus you may owe interest on the arrears amount possibly - not sure of the specifics on this aspect) but countering the arrears due you would have a claim against them for damages due to loss of reputation from them not giving you sufficient time to breach the remedy.

 

conversely, if they did already terminate and it was some time ago then this may work against you if you did not accept their unlawful rescission. when exactly did you stop payments? was it not long after the default notice was issued? If so and then they terminated you some time back you could claim that this was evidence of your changed performance that demonstrated you had accepted their unlawful rescission.

 

these are just a few ideas to start with but you should get more experienced caggers than myself to help you out, including direction to the appropriate threads that show you how to lay out your case, what procedures to follow, etc.

 

hope this helps to get you started. best of luck.

[angel_1]

hiya wish me well

 

you are now with cag so pls do not panic at this stage yet, keep reading around the forum and read up on other halifax threads, and save any that could be useful to you,

 

whilst im sure other more experienced caggers will come along soon the forum will help in other ways too even a bit of moral support:cool:

 

ive saved your thread and will check in again tomorrow and if i find any info will link to you

 

take care angel x

[The Mould]

Ok, after long winded battle trying not to default, it happened anyway but halifax sent a default notice dated 23rd July 2008 giving me until 24th July 2008 to rectify the breach??? I stopped paying Halifax as I could no longer afford the payments and got harrassed by Blair Oliver Scott, all went quite until I received a letter before action from Halifax Litigation dept but stupidly I ignored it as I just assumed it was another "scare tactic" how wrong I was. On the 24th March 2010, yesterday, I received a claim form from Northampton CCBC county court and I have no idea what I should do, or how to respond so that I can use this invalid default to my advantage. I desperately need some advice as the clock is ticking, it gives me 14 days plus 5 from the date of issue which as it stands today is 13 days and counting. Please please help, I dont have a scanner but if you need to see anything to help I will be more than happy to type it out word for word. God I hope someone knows what I need to do Thank you in advance.

 

Hello there wish me well,

 

Have a good look at the Consumer Credit Act 2006 chapter 14, this will tell you if they complied with legislation under the said act regarding the execution of the default notice, if they did not, then they have no legal right to take any legal action and use that in your defence.

 

I hope this will help you successfully contend against their claim, if they did not comply with that piece of legislation no legal action can be taken against you, the court will strike out their claim, but you must ask the court to do this when you respond with your defence.

 

Please up-date, when you can.

 

Kind Regards

 

The Mould

[wish me well]

thank you everyone for your great advise so far, seriousfred, I am sure I received a letter stating that they had terminated the account but as of yet I am unable to locate and with regards to the payments I made, the equal around the amount that the default notice asked for, could I use this as an excuse as to why I continued payments? It was for approx 8 or 9 mths at a reduced rate. Also I will do some reading as advised from the last post and keep you all updated on my way, any further help and support would be extremely welcome and thank you all once again x

[wish me well]

Ok, this has just gone way over my head, (it doesnt take much) chapter 14 of consumer credit act 2006 copied and pasted:

14 Default notices

(1) In subsections (2) and (3) of section 88 of the 1974 Act (contents and effect of

default notice) for “seven” wherever occurring substitute “14”.

(2) In subsection (4) of that section after “it” insert “and any other prescribed

matters relating to the agreement”.

(3) After that subsection insert—

“(4A) The default notice must also include a copy of the current default

information sheet under section 86A.”

?????? help, maybe its just too early in the morning for anything to sink in:smile: advise anyone.....x

[wish me well]

oh by the way the mould, they deffo didnt comply from what I can gather, sorry took a while for my brain to get into gear, any tips on how to put my defence forward, and if I get it thrown out could Halifax then send a compliant default and start this all over again?? thanks I know lots of questions but if i dont ask I'll never know x

p.s a thanks to angel as well, support is a good thing to have when going through things like this xx

Edited March 26, 2010 by wish me well
typo

[angel_1]

oh by the way the mould, they deffo didnt comply from what I can gather, sorry took a while for my brain to get into gear, any tips on how to put my defence forward, and if I get it thrown out could Halifax then send a compliant default and start this all over again?? thanks I know lots of questions but if i dont ask I'll never know x

p.s a thanks to angel as well, support is a good thing to have when going through things like this xx

 

 

You are very welcome, i can look back now and totally understand all your questions and fears, but almost 18 months down the line since i took control of my situation albeit at the start i wasnt facing court action, but the support cag has given me has and still is amazing

 

but as this is also is a self helping forum with lots of stuff to read up and learn, pls take time out to read as many other threads that mirror your situation as you can its the solid way to learn and soon you will be empowered with the knowledge each day

 

keep positive laters angel x

[wish me well]

Thanks Angel, I know that reading and self help is exactly what is needed and I am trying really hard to find situations that are similar to mine but there is just so much to take in and I am just a little scared as I havent replied to the court yet I read in one post that I should send a

CPR 31.14 Request but still havent found what to put in response to court? also from the info above with regards to no court action being able to be taken i am unsure which route I need to take. thanks everyone x

[wish me well]

Ok I have just copied and pasted this, could anyone advise if this is ok to use?

The Need for a Default notice

 

27. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

28. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

29. Notwithstanding point 27, I put the claimant to strict proof that any default notice sent to me was valid. I 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).

 

30. 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 a 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.

cheers everyone x

[seriousfred]

hi again wish me well,

 

in response to your question, there is an ongoing debate on this forum about whether unlawful rescission needs to be accepted and indeed whether continued payments constitute an election by the injured party to continue the contract. The weight of opinion does seem to fall on having to accept the unlawful recsission in writing sooner rather than later and also to cease payments as soon as possible after it occurs to show variation in performance that evidences your acceptance of the unlawful rescission.

 

However, firstly it is important to find out when and indeed if they actually did terminate. Does any of the correspondence since that time show the account as terminated, cancelled or any similar wording? If you can indicate that, when it was received and exact wording then we may be able to help you determine the state of the account.

 

Additionally, as has been pointed out on here a number of times previously, you may well have actually already sent them a letter of unlawful rescission at the time or shortly therafter and just forgotten about it until reminded just now.

 

The payments that continued for 8-9 months after the default notice could well have been in consideration of the arrears due and if you overpaid it could be because they failed to inform you of the amount owed and you were concerned with making sure they were paid in full.

 

Also, you may not have varied the amount you were paying monthly before and after the default as that may have been all you could have afforded. Although, no doubt you could have obtained a one-off payment from a relative or close friend to remedy the breach if they had given you enough time in the default notice.

 

Just a thought of course, but it could form part of your defence if you don't have another one.

 

Given the relatively limited time before you have to respond, you should, as advised above by others, get reading on the forum and also seek advice from the site team to point you in the right direction and hopefully start you off on the right foot with preparing a defence. Keep bumping the thread if no response and also I think you can press the triangle symbol if you need to get attention to have someone of greater experience take an initial look to get you going.

[summerbreeze]

Hi Wish me well

 

Have you sent a CCA request to get a copy of the agreement? This is important.

 

I would advise you to send the CPR 31.14 straight away via 1st class recorded or special delivery and give them 7 days to reply

 

You have 14 days plus service to do the acknowledgement of service and you can do that online with the password on the claim form so do that in the next few days.

 

You should read this sticky by PT

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

If you want to fight them you have to be pro-active.

[seriousfred]

my last post just crossed with yours....I think though that you will need a much more comprehensive argument than listed although, yes, this is useful info to use and an invalid default notice for a terminated account or one that will definitely be terminated upon court action should definitely form part of your defence in my opinion....

[wish me well]

hi serious fred, right I cannot say they deffo did terminate, can't find any letter saying that but it got passed to blair oliver scott until the letter before action arrived on my door 1 month ago, as I stated earlier I ignored (silly me!) then the court papers arrived but in the same post I got a statement from the halifax which I havent received in over a year?? Not sure if this means anything or makes a difference? thanks x

Edited March 26, 2010 by wish me well
typo

[wish me well]

hi summerbreeze, I SAR'd them may 2009, never received any default information but I do have the original default notice which if I have read up correctly is completely invalid. I will read the sticky and thank you once again. x

[wish me well]

Thanks also to serious fred, I am not sure whether I can do this on my own, does anyone know a good solicitor? I can't afford to mess this up

[summerbreeze]

Hi Wish me well

 

In the SAR did you get a copy of the signed agreement ?

[wish me well]

Hi again, right in the documents that I received in the SAR it says the acount was "charged off" on 19/09/08. What does "charged off" mean? Terminated account? cheers x

[wish me well]

Yes I got a copy of the original CCA and I think it is water tight I can't scan it in but it seems to have the info required to make it enforceable. If it gets to court though would the judge make sure of this or should I get it looked at by someone? thanks summerbreezex

[The Mould]

Ok I have just copied and pasted this, could anyone advise if this is ok to use?

The Need for a Default notice

 

27. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

28. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

29. Notwithstanding point 27, I put the claimant to strict proof that any default notice sent to me was valid. I 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).

 

30. 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 a 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.

cheers everyone x

 

Hello and good morning wish me well,

 

Sorry that I have taken so long to get back to you, thanks for the pm.

 

I think you also need to state in your defence that you request the court strike the claim out, on those indisputable facts stated in your defence regarding Non-Compliant with that piece of legislation under the Consumer Credit Act by the claimant.

 

Have you made any direct contact with the claimant regarding their incorrectly executed Default Notice?

 

It is easy for me to say I know, but do not panic about this situation, going to court is nerve racking I know, but your defence is solid, the claimant will not be able to contend against it.

 

Do you have any legal representation for your case?

 

If not, don't worry, you will be able to present your defence/ case perfectly fine, from what you have said in your post, the otherside are in the wrong, they have no excuse for not complying with legislation.

 

Is there anything else that you can think of that you might need some help on, if so, don't hesitate to ask, we will all support you with as much help and advice that we can.

 

I am on line for the next two (2) hours, and possibly a couple of hours this afternoon, and then I will be back on line at around 9.30 tonight, I shall keep a look out for any replies.

 

Take care wish me well, good luck for now and the future.

 

Kind Regards

 

The Mould

[seriousfred]

I think at this stage you will need to go through pre-court/court procedures and think on your feet. My knowledge is not particularly thorough on this part of the process as I have not been anywhere near court yet myself but there is a wealth of info on this site. I would get reading the thread provided by summerbreeze if I were you and also enlist the help of the site team pronto.

 

Determining the state of the account, particularly if, when and how terminated plus determining if they actually have a valid CCA are key points. However, at this fairly late stage I don't know the best way to go about determining this. I am sure there is a way via various CPR rules that you can do this although you will have to be prepared to react quite quickly I believe.

 

Sorry I cannot be of any more help on this. Rest assured once you get feedback from more experienced caggers you will find that you can deal with this situation though.

[wish me well]

As stated in post 12 I do recall sending a letter advising of what I was doing with regards to paying in installments the amount required on the default notice and yes seriousfred is correct that given more time, the correct amount of time I could possibly have pulled together to amount needed thank you very much for jogging my memory

[wish me well]

The Mould, thank you so very much, right to answer the questions:

I have not advised Halifax or Blair Oliver scott about the invalid default notice, and no I have no legal rep I need to work out how to word this in response to the court papers and would I need to send the letter to see exactly what Halifax are going to use? thank you all once again x

[wish me well]

I know this is going to seem extremely rude and I truly dont mean to be but The Mould, you seem very very clued up in this area and I was wondering if I could ask you to help me put together what I need to put in defence or how to get it struck out? I appreciate everyones input and I completely understand if you are unable to, no worries thanks x

Edited March 29, 2010 by wish me well