Help - Nationwide trying to stitch me up at court!

[FightThemOnTheBreaches]

I have numerous (12) creditors and a massive amount of unsecured debt, though won't bore you with the full story right now. Have been in a DMP with Payplan for the last 20 months and not missed a single payment. At first several creditors aggressively pursued the debt but I have seen them off one by one by via CCA/SAR process (several can't produce the original agreement for pre 2007 debts, and I would like to tell them to stuff it, but not sure how to go about it), all except one, which is Nationwide (credit card).

Ironically theirs is one of the smaller debts (originally £1200 - now £1800 with charges and costs etc!). Although they have always accepted the DMP payments, from the start they aggressively pursued me, by phone, letters and even 2 home visits from a DCA (I politely explained to him the shortest route off my property). About a year ago they served me a defective Sec 87 notice (didn't allow 14 days) requesting payment of arrears (about £200 at the time) followed by a termination letter from their solicitors. A few months later they issued county court proceedings. The POC was incorrect in several respects, and I submitted a lengthy defence, not admitting any part of their claim.

That was in January. Since then we have completed AQs, and an order was made for mediation.

I agreed but they refused, on the grounds that there was no point as I couldn't pay more than the DMP.

More recently they wrote to me stating they could not find the original agreement (part of my defence) but instead had a recon, quoting Carey etc. They also enclosed a 'new' Sec 87 default notice, demanding payment of full amount outstanding, and saying they were applying to amend the POC to include the 'new' Sec 87 and rely on that in court, if I didn't comply with it. I ignored it, believing it to be invalid, and was about to reply to them saying so when......

Next thing I know, this week I have received a county court order allowing them to amend the POC to rely on the 'new' Sec 87 notice, and giving me 28 days to submit a defence, or 7 days to apply for a setting aside of the order.

So far, I have defended this myself, with the help of other threads on the site. However, I'm not sure how to approach this latest development. I don't have much time to ask for a set aside, but feel I have a case for doing it on the grounds of the fictitious 'new' Sec 87??

Please, please can anyone either direct me to a relevant thread(s) regarding doing a set aside re a dodgy default notice, or give expert advice? If necessary I can post the docs etc and give more detail.

Apologies for the long post, but I felt I had to give this much minimum detail for it to make sense.

Thanks

[maroondevo52]

Hi,

 

Think you'll get more help in our Legal Issues Forum, I'll move this thread there.

Please check your 'Notifications' I'll send you a Private Message with the 'link'.

 

Regards.

 

Scott.

[FightThemOnTheBreaches]

Thanks Scott.

[FightThemOnTheBreaches]

Would it help if I upload and post some of the docs? There are quite a few by now so I don't want to post all of them for the sake of it. I have until Tuesday or Wednesday to apply for a set aside

 

Today I received a letter from their solicitors claiming that my defence is without merit, and that for me to continue is a waste of the court's time and unreasonable conduct on my part!

 

Thanks

[rebel11]

Hi Fight

 

Just on this issue:- 'More recently they wrote to me stating they could not find the original agreement (part of my defence) but instead had a recon, quoting Carey etc'

 

Part of Lord Waksman Judgement, Carey v HSBC was that, if the agreement has been 'varied', i.e. the interest rate has increased, then the creditor has to provide the 'original agreement' as well as the terms and conditions at

the time of the request.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html It;s long, theres a summary at the bottom, No.4.

 

Some of the guys will hopefully help on other aspects of your questions.

 

The other thing is if you've got Penalty Charges or if you've been mis-sold PPI then claim it all back.

[FightThemOnTheBreaches]

Thanks rebel11. Interestingly, they have supplied me with the front page only of my original application - "to prove you had an agreement with us" - but admit they do not have the original agreement.

 

Months ago I made a Sec 78 request which they never responded to (the above came recently as part of their case ) and now in the letter I got today they are saying that if I am relying on having made a Sec 78 request I have to prove I made the request and paid for it! I have proof of course (recorded delivery and postal order number) - does this mean they're running scared?

 

Also, and I don't know if its significant, they claim the agreement commenced on 12th April 2007, but the front page of the application they sent me has dates they have stamped on it in March 2007?

 

I will check out the interest rates.

 

Thanks

N

[FightThemOnTheBreaches]

I forgot to mention - there's no PPI involved but there is loads of penalty charges - several £100s - all of which they slapped on, after I went into the DMP.

[FightThemOnTheBreaches]

I forgot to mention - there's no PPI involved but there is loads of penalty charges - several £100s - all of which they slapped on, after I went into the DMP. Can you tell me where to find advice on the site about reclaiming?

 

Thanks

N

[FightThemOnTheBreaches]

rebel11 - further to your post, I have looked at the recon agreement they sent me, but how do I know whether there has been any variation, as I have no original agreement to compare it with? Sorry if I'm being thick, but first time I've been in this situation.

 

Thanks

[FightThemOnTheBreaches]

Can anyone give me some expert advice on this please, as I'm running out of time. Basically the other side have obtained a judgement allowing them to rely on a recent Sec 87 notice (the first one a year ago was defective) and are going to ask for the agreement to be enforced on the basis of it. I want to request a set aside - I have the form; is there a certain way to word things? Or can anyone point me to elsewhere on the site where I can see other example(s)?

 

Thanks

[citizenB]

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.

 

x

 

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.

 

 

 

The Claimant respectfully requests that an order may be made as follows:

 

1. That the Claimant's statement of case is struck out pursuant to rule 3.4(2)(a) of the Civil Procedure Rules

as the Calimant's statement of case discloses no reasonable grounds for bringing the claim.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia, the regulations made by the Sectratary of State related to s88 concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated date is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £xxx must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

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.

 

Here is a discussion on DFNs by BRW http://www.consumeractiongroup.co.uk...t-2166205.html

 

and shadow's dodgey DN defence http://www.consumeractiongroup.co.uk...ml#post2165775

 

 

You should ensure that all the content is amended for your particular circumstances. Please be aware that there have been a few cases where Judges have not ruled in favour of the defendant where a dodgy default notice is the sole defence and there are one or two claims that have now gone to appeal . I suggest you do a search for costa12 and see how he is approaching his appeal. There is also a lot of good and current information on his thread. HTH

[FightThemOnTheBreaches]

Thank you so much citizenB, this is brilliant. After (yet another) fairly sleepless night, I now feel I can hit them where it hurts - no less than they deserve. Have started to read Costas thread - excellent! Thanks also for the links, although Shadow's doesn't seem to want to work.

Am off to work soon, with a renewed spring in my step, and will complete forms and post draft this evening - I have to submit to the court by tomorrow.

 

Thanks again

N

[FightThemOnTheBreaches]

THe user should submit a defence based on the same argument but then ask for a strike out with the aq

 

I presume aq means allocation questionnaire? Does this mean I have to complete separate Application Notice N244, and an aq?

 

Thanks

n

[citizenB]

I forgot to mention - there's no PPI involved but there is loads of penalty charges - several £100s - all of which they slapped on, after I went into the DMP. Can you tell me where to find advice on the site about reclaiming?

 

Thanks

N

 

You will find all you need by way of letters and spread sheets in the library.. but have linked you below.

 

http://www.consumeractiongroup.co.uk/forum/content.php?562-Credit-Store-Card-Letter-Template

 

http://www.consumeractiongroup.co.uk/forum/content.php?559-Interest-Calculation-Spreadsheets.

 

 

 

 

 

I presume aq means allocation questionnaire? Does this mean I have to complete separate Application Notice N244, and an aq?

 

Thanks

n

 

 

ooer, dont know. I will flag that question for steven4064 and the shadow to see if they can advise further.

 

I notice you say there are quite a few charges on the account and have linked you to letters and spreadsheets above. Any problems just yell. You might find that some links will need to be copied and pasted into your browser.. some links are acting up at the moment. Again, any problems, just hit the report a post button underneath each post and someone will look in on you.

 

As there are lots of charges on your account, then it is quite likely the sum asked for on the default notice is also inaccurate. It is my understanding that these charges should not be requested.. only sums genuinely owed at the time of default. You will be able to see if the amount asked for on the default notice is accurate, by looking at statements around that time.

 

You will need all of the statements with the charges on to be able to complete the spreadsheet. It is fairly self explanatory. If you dont have all the statements, then you might need to ask for them by way of a subject access request.. letter template in library..

[steven4064]

I presume aq means allocation questionnaire? Does this mean I have to complete separate Application Notice N244, and an aq?

 

Thanks

n

Yes, AQ is allocation questionnaire. When you complete that, there is a section for suggested orders for directions. Put your suggested order for a strike out there. There is no need for a separate N244 if you do that.

 

BTW this only applies in England and Wales. Scottish Small Claims don't bother with an AQ.

[FightThemOnTheBreaches]

Sorry for being thick about this - so I need to apply for a strike out on an aq, instead of a set aside on a 244, rather than both?

[FightThemOnTheBreaches]

citizenB - I have tried the 2 links but am denied access - says I don't have permission to access the page

[the_shadow]

Sorry for being thick about this - so I need to apply for a strike out on an aq, instead of a set aside on a 244, rather than both?

 

If going for a strike out you would fill out the directions section in the AQ, A set aside application is for changing a verdict already given by a judge or a default judgment received in err.

 

You would only complete one of the two as setting aside a verdict puts you back into the court system at that point that the default judgment was obtained.

 

S.

[the_shadow]

citizenB - I have tried the 2 links but am denied access - says I don't have permission to access the page

 

I think you need 20 posts before you can access them... reply to this post and then try again. Both links work as I can see the templates fine.

 

S.

[FightThemOnTheBreaches]

Thanks S.

[FightThemOnTheBreaches]

Still doesn't work!

[FightThemOnTheBreaches]

Tried again as I thought maybe over 20 posts would do it, but still denied access

[FightThemOnTheBreaches]

You would only complete one of the two as setting aside a verdict puts you back into the court system at that point that the default judgment was obtained

 

In that case it makes sense to go for the strike out, as if I went for a set aside at this point I would only subsequently be going for a strike out I guess.

 

Thanks

n

[middenmess]

Tried again as I thought maybe over 20 posts would do it, but still denied access

 

 

Doesn't work for me either!!

Edited October 13, 2010 by middenmess
Missing word

[the_shadow]

In that case it makes sense to go for the strike out, as if I went for a set aside at this point I would only subsequently be going for a strike out I guess.

 

Thanks

n

 

Ok a set aside would cost you and would only postpone the inevitable as a judge is likely to allow the amending of their POC's.

 

As to the links, I've reported it so please bear with us.

 

 

S.