Case management hearing - solicitors admit no original CCA

[Joxer]

I have just received the post and the DCA have supplied statements since 2001, the first 3-4 years statements are missing and they admit to not having retained them. Their is a substancial balance outstanding at this stage, which I think cannot be accounted for.

Personally, I think a DJ will (wrongly) accept this as proof that the addressee had spent thee money.

Thoughts please?

[Joxer]

Hello again,

 

I am at the Witness Statement stage of this now, with a hearing set for August.

I have prepared the Witness Statement (most of it), but am a little unsure of what to put regarding the following:

 

1. Admittance that they do not have the original, or the original T&C's.

(have mentioneed it, but not really rammeed it home)

 

2. Admittance of no Termination Notice.

 

3. Missing statements.

 

Here is what I have :

 

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

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16.

 

4. The Defendant neither admits nor denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all.

 

5. The Particulars of Claim state action is being sought “being monies due from the Defendant to the Claimant under a regulated Credit Agreement between the Defendant and Barclays Bank PLC T/a Barclaycard” .

 

6. I do not admit that I entered into a credit agreement with the Claimant regulated by the Consumer Credit Act 1974. The claimant is put to strict proof that an agreement was made between the defendant and the claimant in the manner prescribed.

 

7. If, which is not admitted, the agreement is enforceable and a lawful assignment has taken place, I do not admit that I am indebted to the claimant in the sums claimed. I put the claimant to strict proof of all sums claimed.

 

8. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16 paragraph 7.3.

 

9. It is admitted that I made an application to Barclaycard. That Agreement was regulated under the terms of the Consumer Credit Act 1974. I make further submissions to the enforceability of that contract below but I put the claimant to strict proof that the said agreement is enforceable both as of the date of its inception and at all times thereafter.

10.The absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

10. It is noted that the claimant filed his witness evidence and other documentation on 28th April 2010, but has yet to supply ANY of this documentation to the defendant.

 

11. The defendant respectfully requests the amendment of this defence if such paperwork is presented to the court.

12. The Claimant’s claim to be entitled to £8446.70 or to any other sum, is denied.

 

 

The Alleged Agreement supplied to the Defendant

 

1. It is denied that the copy of the agreement referred to in the particulars of claim and containing the defendant’s signature represents a regulated agreement under the terms of the Consumer Credit Act 1974 (“CCA”).

 

2. Under the Act there are certain conditions laid down by parliament which must be complied with if such a consumer credit agreement is properly executed and subject to enforcement by the courts

 

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

 

4. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)(“the Regulations”) and are inter alia: -

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

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

 

5. It is an observable point of fact that the alleged agreement referred to in the particulars of claim is deficient of the prescribed terms as is a requirement of schedule 6 of the Regulations and is therefore unenforceable under section 127 (3) of the CCA which states:

 

127(3) The court shall not make an enforcement order under section 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 section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

5. This is clarified in case law from the Lords of Appeal in Ordinary (House of Lords), the highest court in the land, in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

6. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

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

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

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

 

7. It is respectfully requested that the court consider the precedent quoted above in making its judgement on the enforceability of the document the Claimant is reliant upon in bringing action.

The Default Notice

1. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

2. 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)

3. It is averred that the default notice referred to in the particulars of claim does not allow the prescribed timeframe of 14 days after service to remedy any breach referred to in said default notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given.

4. 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 amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Failure of a default notice to be accurate invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255)

 

 

5. It is averred that the Default Notice has not supplied the name and address of the creditor/owner as specified in the Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) - Schedule 2 (2).

6. Without a valid default notice it could be inferred that the bringing about of a county court Judgement without first seeking remedy via a Default Notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA.

Statement of Truth

Any thoughts, I would be most grateful.

[Joxer]

Bumping.

[Joxer]

Can anyone help - this has to be in by Thursday.

 

 

Thanks.

[Joxer]

Bumping again!

 

Help!

[Joxer]

Can someone take a look please?

[citizenB]

Sorry joxer, you appear to have been overlooked. Have you submitted your statement now or do you still require assistance ?

[Joxer]

I filed and served it today!

 

Thanks anyway and any advice would still be much appreciated, pending the hearing in August.

I did mention the lack of TN/missing statements and no the importance of the original cca though.

 

Thanks.

Edited July 15, 2010 by Joxer
punctuation

[bustthematrix]

Hi Joxer

 

Sorry to see you did not get further input on this one. I for one did not get any notification on it. In future, try contacting members of the site team directly when it's this urgent.

 

All the best!!!

[citizenB]

I have just posted some information that might be useful to you.

 

 

 

Money laundering act 2003

Post 6 by cerberusalert

http://www.consumeractiongroup.co.uk/forum/show-post/post-2990050.html

6. - (1) A must maintain procedures which require the retention of the records prescribed in paragraph (2) for the period prescribed in paragraph (3).

 

(2) The records are -

 

(a) where evidence of identity has been obtained under the procedures stipulated by regulation 4 (identification procedures) or pursuant to regulation 8 (casinos) -

 

(i) a copy of that evidence;

 

(ii) information as to where a copy of that evidence may be obtained; or

 

(iii) information enabling the evidence of identity to be re-obtained, but only where it is not reasonably practicable for A to comply with paragraph (i) or (ii); and

 

 

(b) a record containing details relating to all transactions carried out by A in the course of relevant business.

 

 

(3) In relation to the records mentioned in paragraph (2)(a), the period is -

 

(a) where A and B have formed a business relationship, at least five years commencing with the date on which the relationship ends; or

 

(b) in the case of a one-off transaction (or a series of such transactions), at least five years commencing with the date of the completion of all activities taking place in the course of that transaction (or, as the case may be, the last of the transactions).

 

 

(4) In relation to the records mentioned in paragraph (2)(b), the period is at least five years commencing with the date on which all activities taking place in the course of the transaction in question were completed.

 

(5) Where A is an appointed representative, his principal must ensure that A complies with this regulation in respect of any relevant business carried out by A for which the principal has accepted responsibility pursuant to section 39(1) of the 2000 Act.

 

(6) Where the principal fails to do so, he is to be treated as having contravened regulation 3 and he, as well as A, is guilty of an offence.

 

(7) "Appointed representative" has the meaning given by section 39(2) of the 2000 Act and "principal" has the meaning given by section 39(1) of that Act.

 

Document Retention

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

 

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

 

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

 

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

 

I would suggest that where a loan has been taken out to repay an earlier agreement, at the very least, a copy of the original agreement should be kept - although this is something that a court may need to rule on.

 

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/72876-mercers-barclaycard-12.html#post1755248

 

 

Service by post

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

This states:-

"7. 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 band 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.

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

 

 

I notice you say the DN is faulty, that in itself is a complete defence. A draft of such a defence is below.

 

 

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 appliaction 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.

[citizenB]

I filed and served it today!

 

Thanks anyway and any advice would still be much appreciated, pending the hearing in August.

I did mention the lack of TN/missing statements and no the importance of the original cca though.

 

Thanks.

 

If you give us some idea of what help you think you might need we can help:)

 

If you find yourself up against time, or if someone hasnt responded to a question within say 24 hours.. then hit the red n white triangle at the left of the screen under your avatar at the bottom. That way your post will get grab the attention of someone on the site team.

 

HTH

[Joxer]

Good stuff Citizen.

 

that will be very useful and I can add it to my list of case law (as I have mentioned the lack of statements etc. in my Witness Statements).

 

I did hit the red triangle, but appreciate that everyone is doing their best in their spare time and may be involved helping others at that time.

 

Thanks again and I may need more help nearer the hearing.

[jason_mnm]

any updates?