Hi all, some advice please.

[citizenB]

Just having a look to see if I can help

[citizenB]

A little background.

I defended a CCJ from the bulk handling service in 2008, since I never received any info/evidence I got a stay in place.

 

Fast forwards to June this year, I attended a hearing in my local CC. I still had not been sent any paper work, even though the legal brief said I had, so I still contend that I had no claim to answer to.

 

DJ said on 'balance of probability' I owed the debt. Luckily the DJ gave me time to make a proper defence, and this is where we are up to now.

 

I have uploaded the CCA and the legal witness statements.

They can be viewed at my photo bucket folder legal pictures by niknakszaks - Photobucket

 

Any other paperwork needed I can upload too.

 

Onto my defence, I feel I have a few way to defend this;

 

1)No notice of asignment & copy of service from NR.

 

2)No original Default notice ( i have never had 1)

 

3)Unreadable CCA ( its a very very poor photo copy of a copy of a enlarged microfiche)

 

4)No Prescribed T&C's with the CCA

 

5?)Failure to comply with my original request for CCA etc?

 

 

6?)Interestingly on the statement of account from NR, its last entry is shown as 'Bad debt write off' nearly 1 year prior to 1st credit claiming alleged ownership of the debt, with no mention of 'selling/transfer of debt etc after.

 

7) PPI miss sold.

 

I have saved a copy of defence from a couple of other threads I have looked at.

 

In court, the acting solicitor for 1st crdit was trying to direct the DJ that The CCA act change of 2006 and some case repealed the even need for a CCA in the case - clarification of this is need too please. I am under the impression from other threads that my CCA would be covered by the 1974 act, and for evidence purposes a true and readable full signed copy must be available to enable it to be enforced?

 

Advice on the correct line to pursue please, Need to complete this before lunchtime Monday.

I know they are going after my home btw, so need to get this right.

Many thanks in advance to anyone that can help us.

NNZ

 

Okey dokey,

 

PPI mis sold - this is good news. How was it mis sold and can you let me have the figure in respect of the PPI, I agree the agreement is not very legible. It looks to me as though the amount of PPI is £1,050.00 ?

 

Notice of assignment, you say you never received this. Excellent. They are supposed to send this by recorded (registered post) so they can be put to proof that they ever did advise that it was assigned.

 

Default Notice - Loans are a bit different to credit card debt. They need to Default you, but it wouldnt be in the say way. I am not certain how they would need to inform you about this.. but they do have to inform you.

 

Letter before Action, did you ever receive a letter from them advising that if you didnt cough up say within 7 days then court action would take place ? I would think that it should have come from the solicitor.

 

 

They should have provided you with copies of the terms and conditions. The agreement is so badly degraded that I cant see if any, the prescribed terms are all there.

 

Your agreement was entered into prior to 2006 so it is likely that whatever 1st credit was trying to persuade the Judge.. it doesnt apply.

 

You have only put 2 pages of the Claimant's WS up.. Can you either type up what the rest of point 11 says or post the last page

 

As this is now with a local court, are you able to deliver the defence in person ?

 

Any chance you can let me see a copy of YOUR original defence as well please

 

If you can answer the questions above.. then we can see what we can do to help.

[citizenB]

I will upload everything I have for you, obviously reading the warnings I was anxious of not giving away to much.

Would it be ok to PM you the link for the other information?

 

As to me original defence, I basicly stated on the response that since they have not provided any proof, I had no claim to answer to and was a breach of procedure.

( I do not have a copy of the original response, sorry)

 

As for the PPI, Its going back a long way now - but since it was not explained to me at the time what it was or my rights with regards to the PPI, nor did I ever receive any paperwork for the PPI. In my view I was under the impression (at the time) that it was a pre-requisite of the loan, with the full information about alternative options/or the fact the clerk was not a independent advisor.

 

 

Yes, by all means pm any sensitive information. I am bound by site rules to offer any advice on your thread.. but will keep it as negative as possible and anything personal I will pm.

 

As regards the PPI, will have a think about that one. If you werent given any advice, information or even documents and were led to believe that was the only way you could obtain the loan, then that could be worth investigating. Who completed the forms.. other than your signature.. was it them or you ?

 

Remove any personal details from any document you post up

[citizenB]

Thanks 42man, alreadfy read lots and lots - it dawned on me that I better post as in my notes I would be deffended everything yet nothing specificly .

 

Thanks CB, i am uploading the full WS etc with all the evidence atm - I will PM you a link to them, I understand advice must be in here - that is not a problem.

 

The application for the loan was filled in by the bank, not me.

I did try to get some proper legal representation from a couple of places - but i was astounded by how many have no interest in this type of work, and did not seem to know any more then what I could find on these forums.

 

Received safe n sound

 

OK link PM to you CB.

One thing that did strike me as odd.

On the 'introduction letter' , that was supposedly from 2005, is the mention of the £10 fee.

I believe this is a fabricated letter for the purpose of the court file, and I never received such a thing in the first place !

 

Righto.. I will bear that in mind.

[citizenB]

nicknak,

 

On the statements you sent me, there is a payment of £200.00 made on June2006 - The statement advises that it was made via a DCA.

 

This was after the claimant was apparently assigned the account from the original owner. Of which you had no knowledge not having received any notification of assignment.

 

Can you just advise how this payment came to be collected ? eg, did they introduce themselves as acting on behalf of anyone ie the claimant and what made you pay them ? threatening letter, potential court action... do you still have any correspondence from that DCA ?

[citizenB]

I have no idea what it is/was.

The only thing I can think of at the time I was having some issues with my Mrs, so maybe she paid it if they threatened her back then she was kind of messed up a little ( I had moved out for a short period, fool that I am). But I have spoken with her and we genuinely have no recollection of it.

 

Not a problem.. if you didnt pay it personally and have no knowledge of it then that is fine.

[citizenB]

Here you go. There are bits that you will need to complete, so read it carefully so you can put in the correct information.

 

Anything you are unhappy with , just yell. If you feel you need to add or delete bits, then feel free.

 

You will need to make sure you understand what is being said and how you will counter any arguments you may face should this go further. HTH Please take note of the disclaimer in my signature.

 

You will need to print off three copies. One for you, one for the court and one for the claimant. Check with the court that they will serve a copy on the Claimant. If not, you will need to make sure they are sent a copy.

 

In the XXXXXXX

county court

Claim number – XXXXXXXX

 

 

 

 

Between

 

XXXXXXXX - Claimant

and

 

XXXXXXX - Defendant

 

 

 

Amended Defence

 

 

1. I, XXXXXXXXXXXXXXXXXXXXX of XXXXXXXXXXXXXXXXX, am the Defendant in this action and make the following statement as my defence to the claim made by NAME OF CLAIMANT.

2. This amended defence replaces the original dated (DATE OF FIRST DEFENCE) in its entirety as ordered by District Judge XXXX on (DATE OF FIRST HEARING)

 

3. The Defendant admits entering into an agreement with Northern Rock on 3rd July 2001. He does not admit to entering into any agreement with NAME OF CLAIMANT No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the defendant may not have complied therewith.

The Agreement

4. The Claimant admits at points 9 through 11, in their statement dated 18 March 2010, that they did not provide the Defendant with a copy of the agreement on which they base their claim until after the proceedings had started and did not send a copy until 16th April 2009.

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

6. The copy agreement provided is so badly degraded due to age and/ or storage that the Defendant is unable to confirm that it is compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

7. The Court’s attention is drawn to Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) which states:

 

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 .

8. Finally I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

The Assignment

9. The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

In a letter dated 19 April 2009, the Claimant provided a copy of a Notice of Assignment, which is dated 12 July 2005. As the Defendant has not had sight of this document previously, the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

10. Perfection of the assignment.

 

10.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

10.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

10.3 Since the Claimant explicitly states at point 5 of their statement that the notice was “sent” it is assumed that this was done via the postal service. The requirements for service via the post are Law of Property Act (1925) s196. 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.

 

11. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

11.1 I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the Claimant.

11.2 To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the Claimant.

11.3 Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

12. Therefore the Deed of Assignment should be produced to confirm the dates of assignment.

The requirement for valid Default Notice

13. There is no mention of the Claimant or the original creditor, Northern Rock, having served a default notice on the defendant.

14. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. 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. Therefore without proof that a valid default notice was properly served on the Defendant, it is suggested that the Claimant's case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

15. The Defendant asserts that no default notice was received from the Original Creditor, Northern Rock, or the Claimant. The Claimant is put to strict proof that any Default Notice sent to the Defendant was valid. 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. If the breach is capable of remedy, it must also specify a date not less than 14 days after the date of the service of the notice by which that action must be taken. 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). The time permitted for service of documents is specified in the Interpretation Act 1978.

15.1 The date permitted for remedy of any breach was increased from 7 to 14 days on 19 December 2006: see SI 2006/3094, reg 1.

16. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

17. This is 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 S87 and S88 if they are to lawfully default and terminate, and enjoy the benefits of Section 87. 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.

Sums Claimed

18. On a statement provided by the Claimant, there is a sum of £200.00 identified as “Payment from Connaught” credited to the account on 09 June 2009. The Defendant has no knowledge of this payment and puts the Claimant to proof that it was made by him.

19. The Defendant has noticed that a Payment Protection Insurance was included with the loan. The Defendant asserts that this product was neither required nor requested. It was implied at the time of applying for the loan that Northern Rock would look more favourably if this product was included.

19.1 The Defendant now understands that this type of selling is not permitted.

Conclusion

 

20. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4:

 

‘(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order’

 

 

Statement of Truth

 

 

I xxxxx, believe the above statement to be true and factual

 

 

Signed Date

 

[citizenB]

I am not sure whether this is to be a proper hearing or if it is still going to be an application for summary judgement.

 

If it is to be a hearing for summary judgement then you should replace all of that text in 20 Conclusion with the following statement.

 

The Defendant therefore requests that the Court dismiss the Claimant’s Application for Summary Judgement.

[citizenB]

I have flagged the defence up for others to have a look at just to see if it is all ok.

[citizenB]

hi nicnak,

 

I was a little concerned about one section the Defautl Notice.. but I have been advised that all is ok.

 

So, whilst bearing in mind that I have no connection with the legal world and the defence has been constructed with the information you provided and from looking at other defences where the situation is the same.. then please feel free to use it.

 

HTH

[citizenB]

Thanks,

 

got my defence in today.

Probably will have some more questions to get myself ready for the day, but ill post them when I have a list.

 

[citizenB]

Hmmm, not sure.

 

You have a court order that states you are to do something by a certain date. Ok, you were late, that is for the court to determine if they will or wont accept it. As they are usually a few days behind with their paperwork anyway, they would normally give leeway of a day.

 

As Unclebulgaria says, speak to the court and see if they have accepted it, if so , then the opposition can go take a hike..

 

But find out from the court first.

[citizenB]

Just to clarify;

The court accepted it as I took it there in person before the deadline.

I got a Slip from the clerk and even signed it in front of her.

 

Its the DCA claiming that I breached the order;

I have just checked, the papers to the DCA solicitors was delivered 9.30am on Tues morning ( i have proof of reciept too)

So in working time scales they got it at most 2 hours late.

 

Then you can

 

a) either ignore their letter or

 

b) send them a short note back advising that you have a receipt proving when they received their copy and the court copy was submitted on time for which you also have a receipt. That if they feel they are going to suffer any prejudice then they have the right to make their complaint to the court.

[citizenB]

Nicnak, you should find links to cases

 

The Consumer Forums - Cases

 

and to statutes

 

The Consumer Forums - Statutes

 

CAG has quite a good library of information

[citizenB]

Thanks CB,

 

its sometimes finding the wording in the specific case.

The legal jargon throws me a little - sometimes takes 3 or 4 reads before it sinks in.

 

I dont think you are alone there:D Still the more you read, the more it sticks in your mind.. all useful stuff.