Payday Loan Help - Taking Control

[drob]

As yet I have taken no action as I only received the court papers this morning.... I have attached the DN for you perusal

 

DN.PDF

[drob]

Also who is the claimant on the claim form is it Cash Genie or is it Carter Forbes ?

 

The Claimant on the front is: Cash Genie UK LIMITED, however on page 2 it states .....

 

Payment: Carter Forbes

Mrs Jane Bowers

Douglass Wemyss Solicitors

Peter House

Oxford Street

Manchester

[sequenci]

Hi guys,

 

A court summons is actually a very good move for YOU and can come back to bite the payday loan firms that choose this route.

 

If your loan is regulated by the consumer credit act then the provisions in the act allow you to ask the court to make something called a time order.

 

This allows you not only to pay the loan over an affordable period but it also (more importantly) gives the judge the power to amend the rate of interest.

 

for the record, you can apply for a time order at any time once an arrears notice has been served, it usually costs as much as £150 so awaiting a court claim is a cheaper option.

 

info here:

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=06_time_orders

[42man]

Excellent advice from Sequenci !!!

 

Also the DN is a duffer IMO the letter is dated 21st September and the remedy date is 5th October, now unless it actually arrived on the day they typed the letter then they clearly haven't given you 14 days in which to remedy the breach....they now can't send a new one as by virtue of their legal action the agreement has been terminated....and if they attempt to type up a new one it would be complete fiction (as you now have no agreement with them !!!)

 

Have a read of this Drob (and the links contained in it and you'll understand - http://www.consumeractiongroup.co.uk/forum/showthread.php?200901

[42man]

As you will read there is high court law to support the incorrect default notice....I think they will want to get in contact with you once they read this...If I was them it wouldn't be a risk i'd take, especially if the judge saw the figures too !!

[sillygirl1]

Which court is this from as it seems a bit suspicious to me (but then I was born that way!)

 

The 30% interest PER MONTH can be highlighted as being extortionate, even though you took the loan for a short period and made one repayment of interest you can claim your circumstances changed and you soon realised that this loan would be rolling over for a very long time.

 

By keeping your contact with them by email you have a trail of how you have tried offering them a reasonable level of repayments but they just want blood out of a stone.

 

Have sent a PM...

[42man]

You now have several options Drob....and nobody can make your mind up on these...

[42man]

Have a read of this and you may understand what i'm getting at....

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 XXXXXX, 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 it to the Claimant that the Default Notice sent to me was invalid and did not allow 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

[drob]

Which court is this from as it seems a bit suspicious to me (but then I was born that way!)

 

The 30% interest PER MONTH can be highlighted as being extortionate, even though you took the loan for a short period and made one repayment of interest you can claim your circumstances changed and you soon realised that this loan would be rolling over for a very long time.

 

By keeping your contact with them by email you have a trail of how you have tried offering them a reasonable level of repayments but they just want blood out of a stone.

 

Have sent a PM...

 

The order was issued by my home town county court, which i thought was unusual

[drob]

Ok ...

 

1. A Time order if i understand it correctly would cost £150 if a Judgement was made against me. As the original loan amount was only £150 I can't see the benifit of this.

 

2. The clock is ticking so do I need to acknowledge the order and start the ball rolling preparing a defence?

[dx100uk]

knock up a spreadsheet for the excessive charges/letters etc too

and add 8% stat int + int at their rate compounded.

 

4 guests eh!

 

no got the bottle to drop everything and openly apologise to the OP for this mess.

 

......dx

[drob]

Can someone help??? Do I acknowledge this claim and defend???

[cooldude1980]

Hi Drob - i am in exactly the same boat...i have already filed my defence though!

 

There is a lot of good information here...I have a feeling my DN is not compliant either but I didnt include this in my defence.

 

But their breakdown and the Jane Blowers as the claimant is all the same....

 

I know cash genie read this forum, but I am surprised they would use this forum though as all it shows is how bad they are?

 

As long as you make a reasonable off3er to repay the loan then they should accept it...worst thing is had they accepted my first offer the loan would have been paid off before the date they even started legal action....so basically all they are keen to do is get as much money from you as possible without giving you a fair chance to repay the loan in a timely manner...

 

anyways...i am expecting an aq in the next few weeks at which point the battle is really going to kick off...

 

also what is the forums view on them treating each client differently? Ie they take some to court and others not eventhough same amount is outstanding for similar time periods???

 

Also...I really don;t think they are fit to hold a credit licence, from the way I have been treated it shows they are not fit for it at all. So what can we do to bring this to the attentions of the right people?

 

I am already in touch with Which? but it will not bother cash genie as the readership is small...how can we warn people of dealing with cash genie?

[drob]

Can someone help??? Do I acknowledge this claim and defend???

[cooldude1980]

Yes, sounds like your situation is the same as mine. Def defend the claim unless you believe the amount they have claimed is what you owe. In my case the amount claimed was about 3 times what I felt I owed.

 

You can then let the judge decide what is fair. The bottom line is that we made reasonble offers to repay this loan - in my case I offered £50-75 a month on a loan less than £200. But all Cash Genie care about is making money on the charges.

 

They also charge £12 per letter and email, as stated in the contract. But I still think this is a bit excessive as they are automated messages. And most of them are sent after I contacted them to discuss repayment plans.

 

DEFEND DEFEND DEFEND!!!

[sillygirl1]

If you want help with the defence I am around most of today, going out about 4 ish...

 

I would defend PART of the claim, ie that you borrowed the original sum and had already tried to get a more reasonable payment plan into place but the company chose to ignore you and continue to frustrate the lines of communication.

 

You can use the fact that they viewed this thread - throughout the thread you state you wanted to pay them back so most of their claim has little basis - especially the excessive charges for interest, 30% a month is NOT stated on their website, it should be if this is what they ACTUALLY charge, along with the atrocious APR.

 

Companies such as this are not viewed very lightly by the courts, in view of the fact you have an email trail where you asked them time and time again to be reasonable they deem it prudent to quadruple the original debt, if it was £250 you had to pay back fair enough, but the amount they claim is crazy.

 

There is a solid defence we can build on, including asking the court to throw the claim out for being vexatious and litigatious.

[cooldude1980]

Silly - just noticed something. As more and more evidence seem to come to light here and as my case is similar I am learning a lot here too...

 

Once you have filed the defence, can you add more evidence at a later stage? Ie when the aq arrives?

[42man]

posting some information here....I am not any kind of expert here, but you will need to read a lot about this if you want to attempt this route...Sillygirl has offered to give you some help too....nobody can guarantee anything for sure as you have to bear in mind that judges can vary wildly, and you may potentially present your case in front of a judge and possibly an opposing solicitor.

 

I would like to suggest that the user may be able 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 application and shell out £40.

 

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

 

IN THE XXXXXXX county court

 

CLAIM NO. XXXXXX

 

BETWEEN

 

 

 

XXXXXXXXX

Claimant

and

 

 

 

XXXXXXXXX

Defendant

 

 

 

 

 

 

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

 

 

STATEMENT OF EVIDENCE

 

 

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

 

 

 

1. This Statement of Evidence is filed pursuant to CPR Part 24.5(1).

2. Notwithstanding the matters pleaded earlier, 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.

 

3. 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.

 

4. In a Practice Direction made by J R BICKFORD SMITH Senior Master

Queen's Bench Division Practice Direction, dated 8 March 1985, it says

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.

5. Further to point 3 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.

 

5. The Default Notice supplied by the Claimant (attached as annex 1) is dated (Tuesday) 19 June 2007, 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 Thursday 21 June, namely Thursday 5 July 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been Tuesday 3 July. The Default Notice does not allow the statutory 14 clear days for me to remedy the breach.

 

6. 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).

 

7. The failure of a Default Notice to comply with all these regulations 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.

 

8. It is submitted that the Default Notice served under s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

9. 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.

 

10. 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…

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. The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case pursuant to CPR Part 3.4(2)(a).

 

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

 

an application to strike out should be made on N244

as soon as practical.

 

However consideration MUST be given to costs if the application fails, it should not be something that is thrown in for the hell of it as you can land a bill in excess of £1K if your app fails

 

I doubt the court will consider any informal applications to strike out so an app on notice is the correct route.

[drob]

Thank you all very much for your advice so far.......

 

As Cash Genie are paying particular attention to this thread please can you PM with any further help and advice. I will of course make everything public once I have decided how to tackle this.

 

Can anyone tell me, do I need to request further Information in order to produce a defence?

[themadcap]

Drob I have PM'd you, feel free to get in touch for any help

[citizenB]

Update

 

Received a county court summons this morning from Cash Genie and attached to the claim was a print out of this thread .... Cash Genie are watching!!!!

 

I wonder what the judge will say when he sees the typical APR of Cash Genie typical 2,623% !!! What staggers me is that Cash Genie accepted your offer of payment, and Carter Forbes didn't accept and IMO your offer seems very reasonable.

Also the charges seem excessive too.

 

f. pressurising debtors to pay in full, in unreasonably large instalments,

or to increase payments when they are unable to do so

 

Ok ...

 

1. A Time order if i understand it correctly would cost £150 if a Judgement was made against me. As the original loan amount was only £150 I can't see the benifit of this.

 

2. The clock is ticking so do I need to acknowledge the order and start the ball rolling preparing a defence?

 

 

Have you made a start on this already ? You only have a certain amount of time. The timeline will be printed on your claim form. I understand this came from your local court ?

 

I would almost certainly add in to your defence that Cash Genie /whoever, have sought to intimidate you and prevent you from seeking advice by attaching your thread to their claim form.

[drob]

Have you made a start on this already ? You only have a certain amount of time. The timeline will be printed on your claim form. I understand this came from your local court ? Yes, defence has been completed and is now being proof read by Sillygirl

 

I would almost certainly add in to your defence that Cash Genie /whoever, have sought to intimidate you and prevent you from seeking advice by attaching your thread to their claim form.

I have built this fact into my defence

 

 

 

 

The Claim form was Issued on 5th October, does the 14 days include weekends or is it 14 working days?

Edited October 14, 2010 by drob

[citizenB]

Excellent.

 

14 calendar days.. includes weekends.. sorry

 

So, if your claim was issued on October 5th, you have until the 19th to acknowledge then I think a further 14 days to submit a defence.

[sillygirl1]

But knowing the limiations of the court system as it stands I expect we should get this off on Monday... leaving these to the last minute leaves you open to abuse from the 'judgement by default' merchants...

[drob]

But knowing the limiations of the court system as it stands I expect we should get this off on Monday... leaving these to the last minute leaves you open to abuse from the 'judgement by default' merchants...

 

Did you get the draft I sent you Sillygirl1?