Cash Genie - Court Summons - Advice Needed!

[s4ddys]

Hi All,

 

Wasn't sure whether my problem was better suited to this or the legal section but here goes anyway.......

 

Will try to keep it as brief as possible!

 

I took out a loan with Cash Genie in September of 2009 to be repaid in October, but to cut a long story short I didn't pay it back and they have been harassing me ever since. I could not afford to pay back anything on the loan as I needed to put all my spare cash towards my mortgage arrears as they were threatening eviction.

 

I sent a CCA to CG in October 2009, to which they never replied.

 

I also wrote to them in November as they were still harassing me, saying they had not responded to my CCA request and to go away, but they still continued to write to me.

 

Heard nothing until March when I received a court summons.

 

Wrote them a CPR 31.14 request to which they replied with a copy of the credit agreement but no breakdown in charges or anything else.

 

Its now been transferred to my local court, and I have submitted my defence stating they have not supplied the information I requested, APR was a joke, no breakdown of charges, still adding interest on at 30% per month etc.

 

I have now received the attached document with explanation to why they are pursuing the matter and am slightly scared.

 

When I receive a court date I want to attend to put my side forward but would like to send a response in the first instance to there defence.

 

Can anyone advise me on what I would write back to them as I am now out of my depth and struggling.

 

Also I have a couple of questions I would be grateful if anyone could answer:

 

Is the Credit Agreement valid? Would I have any defence on this?

 

In section 8 they say that they were willing to mediate but I wasnt, this was because I was in no position to make a payment. But when I spoke to the mediation people they said it was up to me and they could not use this against me, although they clearly have.

 

Any advice would be much appreciated.

 

many thanks

 

s4ddy

 

CG witness statement.pdf

[fugro]

I have nothing to add re what to do about the court situation, but surely you should ammend the document you have scanned and put up here as it has your personal information on it.

 

Just my 2 pence worth.....

[s4ddys]

Im such a numpty, did it in such a rush I uploaded the wrong document! Will sort it now.....

[s4ddys]

Hi All,

 

Will try to keep it as brief as possible!

 

I took out a loan with Cash Genie in September of 2009 to be repaid in October, but to cut a long story short I didn't pay it back and they have been harrassing me ever since. I could not afford to pay back anything on the loan as I needed to put all my spare cash towards my mortgage arrears as they were threatening eviction.

 

I sent a CCA to CG in October 2009, to which they never replied.

 

I also wrote to them in November as they were still harrassing me, saying they had not responded to my CCA request and to go away, but they still continued to write to me.

 

Heard nothing until March when I received a court summons.

 

Wrote them a CPR 31.14 request to which they replied with a copy of the credit agreement but no Breakdown in charges or anything else.

 

Its now been transferred to my local court,and I have submitted my defence stating they have not supplied the information I requested, APR was a joke, no breakdown of charges, still adding interest on at 30% per month etc.

 

I have now received the attached document with explanation to why they are pusuing the matter and am slightly scared.

 

When I receive a court date I want to attend to put my side forward but would like to send a response in the first instance to there defence.

 

Can anyone advise me on what I would write back to them as I am now out of my depth and struggling.

 

Also I have a couple of questions I would be greatful if anyone could answer:

 

Is the Credit Agreement valid? Would I have any defence on this?

 

In section 8 they say that they were willing to mediate but I wasnt, this was because I was in no position to make a payment. But when I spoke to the mediation people they said it was up to me and they could not use this against me, although they clearly have.

 

Any advice would be much appreciated.

 

many thanks

 

CG witness statement.pdf

[robjam1969]

This might be worth moving to the legal forum. The first time I have seen Cash Genie go the court route.

 

As far as I am aware there is no obligation to mediate and this can't be held against you.

 

I hope you have logged any threatening calls, letters etc.

 

On the legal forum you may be able to get someone to look at the agreement to see if it is enforceable. You may also get some advice re a rebuttal statement if you want to disagree with any of the witness statement.

[s4ddys]

Can a mod please close of this thread? Have reposted in the legal section.

 

Thanks

 

Can anyone advise?

[42man]

Did you receive a default notice ? What were the particulars of the claim ?

 

They have failed to issue a default notice and their legal action is termination of the agreement....i'd say it is an unlawful recission of the contract. The Consumer Credit Act makes it quite clear....

 

What defence did you submit ? I'd be asking for their claim to be struck out, the lender has no right of action...

 

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 funny thing is now they have terminated the agreement by way of legal action, they now can't issue any kind of default notice as it would be pure fiction !!!

 

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.

 

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 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 which has been effected by the legal action of the claimant. Any such future default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. Any future default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on the date that legal action commenced Terminating an Agreement on the back of no 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.

[s4ddys]

Hi 42man,

 

The particulars of the claim were very sparse, they jsut said payday loan + charges and interest claiming over £700.

 

They did send a default notice when they should have done, dont have it to hand though im afraid.

 

I have attached my defence and their reply to my defence for your perusal.

 

Just realised there is a court date scheduled for 15th July 2010 so I intend to appear in person, could really do with a steer as to what to say.

 

TBH I never expected it to get this far........

 

They only sent me the docs attached last week, therefore giving me no time to respond.

 

claimants N149 + reply to filed defence.pdf

[42man]

It would be interesting to see the DN too....

[s4ddys]

Wont be able to get hold of it until after the weekend, which I suspect will be too late by then.

[42man]

You need to check the default notice too - hopefully this will explain in more detail... - so the default notice MUST show a date (not just say 14 days) - http://www.consumeractiongroup.co.uk/forum/show-post/post-2172221.html

 

Read this on defaults and terminations - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

And do read this too - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[s4ddys]

Will try to get home tonight to pick it up and will upload tomorrow all being well.

 

Thanks for all your help.

 

Would you believe I have just had an email with a without prejudice offer to settle at £550.00?

 

The cheek!

[42man]

Well they do watch and come into these forums, and they are either giving you the opportunity to avoid court or they are worried that a judge might see 4,000% apr and take your side. Or they might have seen a mistake in their default notice. And lets face it the particulars are very vague and don't give cause....OR they have failed to produce the documents requested in your CPR.

 

Would you like to make a comment garysonjack ?

 

Ahh sorry you won't be able to because you work for them !! Their charges seem incredibly excessive too whether it says in the contract or not. Credit Cards tried to do this but were capped as you may remember at £12...

 

£12 for a letter is excessive...it costs them maybe 60p for a stamp and a computer generated letter....

[s4ddys]

But £550 - A little excessive?

[42man]

Are you in a position to settle (not neccessarily for the figure above) ?

[s4ddys]

Not really, TBH I can show the courts that I wasn't avoiding them, I just couldn't afford to pay, plain and simple. They sent me all sorts of offers etc but wouldn't let me pay by standing order so I was never able to take them up (they were all verbal), and I most certainly wasn't willing to give them my card details after what I had read.

 

I can still show the courts now my salary is taken up through priority bills which I am just about getting to the bottom of (gas, electric, mortgage arrears). And have a disposable income of £14 per month on paper.

 

I could be, would be a struggle but could probably raise the inital amount borrowed......

 

Good morning and happy friday!

 

Have attached a copy of the default notice, there response to my CPR request and accompanying documents.

 

Will upload the original claim form with POC's shortly.

 

Cheers

CG Default notice and my response.pdf

CG response to CPR Req.pdf

[42man]

That is not a default notice.....it is not in the prescribed form

[s4ddys]

Also now attached, orginal claim form.

 

WOuld you please expand on the above comment?

CG Original Claim.pdf

[42man]

It seems to be an unlawful recission of contract on their part. They have failed to send you a default notice in the prescribed form and by way of their taking you to court they have terminated the contract...and you have high court rulings to back this up...

 

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).

 

 

 

I just wish you would have contacted the forum earlier as it may be too late to do anything. The only way you would be able to do this is with an amended defence....the other option of course is to issue an N244 throwing out their claim....

[s4ddys]

Many thanks for all the info.

 

I didn't realise a date had been set, I rang the court last week and they said no date was set as yet as they had failed to pay the lsiting fee.

 

They have paid it now so I was waiting for a court date.

 

Might just give the court a quick ring......

 

Jsut rang them and its definately next week.......

[42man]

Their agreement states "fixed term loan agreement regulated by the Consumer Credit Act 1974" It is staggering that companies like these don't seem to understand the Consumer Credit Act properly.....this could be interesting in front of a judge and depending on what judge you get as they do vary wildly, it could go badly wrong for them...and bear in mind it isn't just a case of 'the defendant spent the money and hasn't paid it back' in all the multitude of high court consumer credit cases it wasn't a case of whether the money was owed, it was just that it couldn't be enforced.....you need to understand what is being said here....and don't forget you have high court law to back you up. I just feel you need to submit an amended defence.

[s4ddys]

How would I do that?

[42man]

Once you know your stuff it is a different ball game altogether....If the judge takes a dislike to 4,000% and excessive charges, you never know he might well side with a litigant in person. Are Cash Genie prepared to take this risk ?

[42man]

I'll try and find out...but worth searching on these forums under the word 'amended'

[s4ddys]

Just spoke to the court and to submit an amnded defence you have to submit a N244 form with the reasons for the amended defence. There is a £40 charge for the judge to consider it on paper, or if you choose to do it at the hearing in front of the judge its £75.00.

 

I don't get paid until next Wednesday so may have to go for the more expensive option.

 

I suppose its worth £75.00 if the case gets thrown out.

 

Or I was thinking I could offer CG £50.00 token payment?

 

What d you think?