Connaught/1st Credit Statutory Demand - WON *** DEMAND WITHDRAWN ***

[mevsthem]

Hi, Im up to page 5 on my witness statement and exhibit 8 regarding the dispute. I have not even started on the dodgy default/termination notice, am I going a little too deep into this to present it to the court ?

[42man]

It all may assist you in your case.....but make sure you number it all...and keep it neat and tidy..

[mevsthem]

Thats exactly what ive done regarding numbering and i am going in the morning to make 2 photocopies of each document to hand into the court all stapled including proof of postage. I am just worried im rambling explaining each one instead of writing a brief paragraph and refering to say documents 1 through 10 for reading

[mevsthem]

Is there any case law regarding unlawfully terminating account before the 14 day period on a default notice ?

Also can I quote from Phoenix Recoveries v Kotecha ?

[The Mould]

Is there any case law regarding unlawfully terminating account before the 14 day period on a default notice ?

Also can I quote from Phoenix Recoveries v Kotecha ?

 

State "repudiated the contract" and terminated in contravention of statutory requirements imposed under s.87(1) CCA 1974 (as amended) - case law, see Woodchester v Swain & Co and Brandon v American Express.

 

Kind regards

 

The Mould

[mevsthem]

Do I have a valid argument that the OC passed this account to a dca ( Robinson Way Ltd) before sending the dn and tn ?

[The Mould]

Do I have a valid argument that the OC passed this account to a dca ( Robinson Way Ltd) before sending the dn and tn ?

 

Are they expressly identified in the contract as to a benefit conferred upon them to exercise any rights of the original creditor? Contracts rights of Third Party Act 1999

 

Having said the above, I would say not really a valid argument to set aside an SD, however, if you were in genuine dispute with the creditor, then s.140A Unfair relationship could be thrown into the mix of your assertions/contentions, anything done or not done by the creditor in connection with the credit agreement, certainly unreasonable to disregard his customer's genuine dispute.

 

Kind regards

 

The Mould

[mevsthem]

This makes interesting reading with regards to a genuine dispute

 

Section 140A of the 1974 Act provides that a court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:

 

any of the terms of the credit agreement or a related agreement

the way in which the lender has exercised or enforced its rights under the credit agreement or a related agreement, or

any other thing done (or not done) by or on behalf of the lender either before or after the making of the credit agreement or a related agreement.

The courts have a wide range of powers where a credit relationship is found to be unfair, including:

 

altering the terms of the credit agreement or a related agreement

reducing the amount payable by the borrower

requiring the lender to refund money to the borrower

removing any duty placed on the borrower under the agreement, and

imposing requirements on the lender or an associate.

In addition, where unfair relationships harm the collective interests of consumers, the OFT and other enforcers (including Local Authority Trading Standards services) can take enforcement action under Part 8 of the Enterprise Act 2002.

[mevsthem]

well statement is all about done, could do with proofing but dont think its a good idea to post it up here. Just hope they take into consideration LIP. Qutoed bits of Law but a lot is in my own words. Just thinking I may have rambled a bit. Need to photocopy 18 Documents too

[42man]

Robinson Way may have only been collecting on 'behalf of' as opposed to actually owning the debt which makes a difference to the DN and termination.....If it is the former then I don't think this is worth mentioning...

[mevsthem]

ok thanks 42man, I just wondered if it would be possiible to pm someone who's opinion i value my statement to take a look at, or is this not acceptable regards forum rules

[mevsthem]

I really need to get this sorted as it will affect my employment too, being self employed now

[42man]

You can PM them of course, but they really should reply on thread for comments/opinions.

[mevsthem]

Just thinking that I may as well post minus personel details as Ive nothing to hide and they are going to see it anyways

Edited February 9, 2012 by mevsthem

[mevsthem]

Right here goes, please delete post if you think it is not advisable to leave it open on the forum

 

 

I xxxxx oath and state the following

That in xx/xx/xx I was informed of upcoming redundancies at work which would make drastic changes as to my financial state. Immediately I contacted my creditors ( Halifax Plc ) informing them that my finances were possibly about to be affected and asked If I could possibly make a payment reduction or maybe freeze interest for a set period of time to help. The reply from the creditors was that they could not help and I could lose my home if I do not keep up with the repayments on the credit card.

In xx/xx/xx I received ( attached document 1) stating that a substantial increase in interest rates from 17.9% to 27.95% was to be applied to the account from xx/xx/xx. It was my belief the agreement signed was for 17.9% for the life of the card.

That on the xx/xx/xx (attached document 2) after being informed of the substantial increase in the interest rates on the alleged account, A formal request was made under sections 77-79 of the consumer credit act 1974 for a true copy of the signed, executed agreement to see exactly what it was I had actually signed for.

That on the xx/xx/xx I received ( attached document 3 ) from the creditor with reconstructed terms and conditions enclosed stating a different interest rate of 23.53% and 29.95% . No copy of the executed agreement was supplied.

That on the xx/xx/xx ( attached document 4) was sent to Halifax Plc placing the account in dispute until such a time that a valid executed agreement containing all of the prescribed terms was received.

In reply, on the xx/xx/xx ( attached document 5) was received containing an application form which does not form a consumer credit agreement, containing all the prescribed terms. Showing no evidence of the interest rate to which I agreed to, which formed the basis of my original dispute.

That on the xx/xx/xx ( attached document 6) was sent to Halifax stating that the agreement does not conform to sections 60(1) and 61(1) of the consumer credit act 1974 and would therefore only be enforceable by a court under s65. However the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3)

In return on the xx/xx/xx ( attached document 7) was received, which was the same document as received xx/xx/xx (attached document 5) and for some reason dated ( even before my cca request).

That on the xx/xx/xx ( attached document 8) was sent to Halifax Plc stating the account was still in dispute and to please make all further correspondence in writing only due to the amount of phone calls I was receiving which I deemed personally harassing. To which in reply (attached document 9) was received containing the same application form as attached document 7 and 5 still with no reference to all the prescribed terms or rates of interest.

THE IMPORTANCE OF THE CREDIT AGREEMENT

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:


‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

3. PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

HELD: Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6).

 

 

 

DEFAULT NOTICE

On the xx/xx/xx A default notice was issued by the creditor which gave until the 29/10/2009 to pay arrears owing on the account of £xxxx ( attached document 10).

On the xx/xx/xx a termination notice was issued by the creditor ( attached document 11), terminating the account without giving such time to remedy the account.

Therefore the creditor repudiated the contract and terminated in contravention of statutory requirements imposed under s.87(1) CCA 1974 (as amended)

It is averred that the alleged creditor has not served a valid statutory default notice pursuant to s.87(1) of the Consumer Credit Act 1974 (as amended), therefore, he holds no entitlement granted therein to seek to enforce the agreement and it follows that he has no standing before the court in respect of the same.

 

 

 

Default notices

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.

 

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective. Contents and effect of default notice.

 

(1)The default notice must be in the prescribed form and specify—

 

(a)the nature of the alleged breach;

 

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2)A date specified under subsection (1) must not be less than [14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [14] days have elapsed.

 

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].

 

[F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

 

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

I would like to bring to the courts attention (attached document 12) sent on the xx/xx/xx clearly stating that the account is still in dispute even after the creditor repudiated the contract, asking for the opening of an official complaints procedure within 14 days to try and resolve the dispute. No reply was received.

Attached documents ( 13 – 15) had to be sent to various debt collection agencies clearly stating my concerns and dispute due to the amount of letters and phone calls I received, which I deemed harrasaing.

Upon receipt of the Statutory Demand “Exhibit A” contact was made with 1st credit ( attached document 16 ) clearly stating my dispute and requesting the stated information they hold regarding the account.

In return on the xx/xx/xx ( attached document 17 ) was provided stating that Halifax Plc have no details of any outstanding dispute in relation to this account. It is also noted that I have not received a true copy of the executed agreement as requested. The copies of statements received from Connaught/1st credit are also disputed as ( attached documents 18 ) show payments being made to the account. I would therefore request information as to where these payments have come from as no payments have been made in respect of the unenforceable, unlawfully terminated account since xx/xx/xx.

All copies of the original documents will be presented to the court including proof of postage on the day of the hearing.

 

It is my belief that the creditor has issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT debt collection Guidelines imposed on 1st credit 2009.

On the above information and the fact that there is a clear dispute I believe this is a blatant abuse of process and in light of this I request that the demand is set aside and I kindly ask the judge to award my costs in this matter as a LITIGANT IN PERSON.

 

As a low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

 

On the first page of statement I have put the following

 

 

1. That on xx/xx/xx

the statutory demand exhibited hereto and marked “A” came into my hands.

 

2. The defendant totally disputes the debt.

 

3. The alleged creditor has provided no enforceable consumer credit agreement that contains the prescribed terms.

 

4. The alleged original creditor has not provided any valid notices of assignment.

 

5. The claimant has provided no evidence of any PPI which may have been applied.

 

6. The alleged creditor has failed to serve with the statutory demand a copy of the alleged agreement, statement of account, default notice and termination notice for this alleged account.

 

7. The amount of the debt is disputed due to unexplained charges and payments which may have occurred whilst the account is in dispute

 

 

If anyone could possibly advise I would really appreciate it as im not very good at speaking in law terms. This may be able to be diluted into a couple of paragraphs, I dont know

[42man]

I'll have a close look when I get a chance mevsthem

[mevsthem]

Much appreciated 42Man, I really value your opinion

[mevsthem]

I know its not a mjor issue but the court address on the SD is wrong. Just been to town to photocopy all documents and my local county court building is closed with a for sale sign above it.

Googled it and they have moved to a new address.

Shows how thorough these people are tut tut

Edited February 9, 2012 by mevsthem
deleted

[42man]

You mention the court on the SD is wrong ? is it not your nearest ? You may also like to raise this in court as a possible abuse of process...but this may depend on the judge...

 

Also in regards to your default notice, you may find this useful

 

Default under s87 (1) Consumer Credit Act 1974

• The Claimant pleads that the Defendant breached his contract. By virtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974 the Claimant is required to serve a default notice in the form prescribed by Consumer Credit Default Enforcement and Termination Notices Regulations 1983(The Regulations). No notice compliant with the Consumer Credit Act was served therefore the Claimant is barred from terminating the agreement and demanding the sums claimed from the Defendant. In respect of the defects within the Default notice, the Defendant relies upon the following particulars of the breaches:
   
  17.1 The Default notice served fails to state adequately the name and address of the Creditor, thus breaches regulation 2 and schedule 2 Para 2(1) of the Regulations
   
  17.2 The Default notice served fails to contain an adequate description of the agreement sufficient to identify it as the account number specified is materially wrong. Furthermore there is no reference to the type of agreement concerned within the body of the notice. The account number stated is inherently wrong. This is a breach regulation 2(2) and schedule 2 Para 1 of the Regulations.
   
  17.3 The Default notice served fails to specify the information required by Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations. Furthermore the notice demands the full balance outstanding, this is not permitted as the service and expiry of a Default notice in accordance with s87 (1) Consumer Credit Act 1974 is required before a creditor can become entitled to demand accelerated payments.
   
  17.4 Furthermore, the Default notice provides that the Debtor should make a “down payment of 40% of the balance”. Schedule 2 of the Regulations do not allow for such an ambiguous statement to be made in respect of the action required to be taken under paragraph 3© of schedule 2 of the Regulations.
   
   
  17.5 The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 of the Regulations. For the avoidance of doubt the regulations require the wording specified by the schedule to be used without variation as laid out at Regulation 2(6) of the Regulations.
   
  17.6 The Default notice served did not contain the Office of Fair Trading fact sheet as required by paragraph 10(A) of Schedule 2 of the Regulations.
   
  17.7 The Default notice fails to adequately state the balance of the account due to the inclusion of interest and default charges within the outstanding balance and which the Claimant is not entitled to charge due to the matters pleaded within paragraph 14,15 & 16 above.
  
• Accordingly the Default notice is bad and no enforcement is permitted. The Defendant relies of Harrison vs. Link Financial Limited [2011] EWHC B2 Mercantile to support this.
  

[The Mould]

Under the heading "Default notice" in your draft, delete the word "alleged" before the word 'creditor', because the creditor is in fact a creditor.

 

Kind regards

 

The Mould

[mevsthem]

Thanks 42man, will add this to statement. Does the rest look ok to you ? Regarding court address on SD. I walked past today to find the building is closed and up for sale. I decided to google and found out that they have moved round the corner. My point being they have not checked the courts address properly.

[mevsthem]

Thanks for dropping by Mould, Your opinion is also a great help as is 42Man's. Will edit it now

Edited February 9, 2012 by mevsthem

[mevsthem]

Do you think this would be ok to add regards default, I think it sums it up about not giving 14 days notice and gives the time scales service of documents. It needs a few bits ammending ie dates etc

 

 

 

 

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.

Edited February 9, 2012 by mevsthem

[The Mould]

Very briefly mevsthem,

 

 

I would advise you to delete “Unlawful rescission of the contract/agreement” and replace with something along the lines of the following; (as an example of argument)

 

1. Invalid statutory notices served

 

It is averred that a creditor’s failure to serve a valid statutory default notice invalidates his entitlement granted under s.87 of the Consumer Credit Act 1974 (as amended) (“the Act”) to demand earlier payment of any sum or to recover possession of any goods or land, but that the service of such an invalid statutory notice does not invalidate the creditor’s action of terminating any credit agreement in reliance upon the same, in this regard; I assert that this action brought by the creditor is bad in law and an abuse of process and ought to be dismissed without further notice.

 

s.87(1) of the Act clearly states the legislation applicable in respect of statutory provisions imposed upon creditors relating to the ‘necessary’ service of a default notice, in such cases where the creditor fails to comply with said obligation, the needs of the debtor, protection granted by the statute, far outweigh any needs of the creditor, who, in his said failings, has displaced his ordinary entitlement, that is, his ordinary entitlement to demand full payment of any sums, take recovery action of any goods or land and or enforce the credit agreement pursuant to s.87(1)(a)(b)©(d)(e) of the Act.

 

Failure, by any reason of the creditor, to comply with the said statutory requirements imposed, by way of service of an invalid statutory notice, will not and cannot possibly extinguish his termination and repudiation of the credit agreement nor shall such failure extinguish his demand(s) for earlier payment of any sum or any action taken by him to recover goods or land, the displacement of his ordinary entitlement remains out of reach to him. Without the service of a valid said statutory notice, there can be no action taken by the creditor against the Claimant/Respondent and Judgment cannot be sought and awarded to the creditor for the full sum claimed by him or for the recovery of any goods or land in contravention of the said statute.

 

Rescissision is a remedy, repudiation is an act of abandonment of the contract by one party which the other party can seek damages for, with recission being one of the equitable remedies.

 

Kind regards

 

The Mould

[mevsthem]

Would this sound ok, as I now feel like i'm talking in a different language

 

 

DEFAULT NOTICE

 

On the 08/10/ xx A default notice was issued by the creditor which gave until the 29/10/xx to pay arrears owing on the account of £xxxx ( attached document 10).

On the 21/10/xx A termination notice was issued by the creditor ( attached document 11), terminating the account without giving such time to remedy the account.

Therefore the creditor repudiated the contract and terminated in contravention of statutory requirements imposed under s.87(1) CCA 1974 (as amended)

 

 

 

Default notices

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.

 

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective. Contents and effect of default notice.

 

(1)The default notice must be in the prescribed form and specify—

 

(a)the nature of the alleged breach;

 

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2)A date specified under subsection (1) must not be less than [14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [14] days have elapsed.

 

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].

 

[F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

 

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

Invalid statutory notices served

It is averred that a creditor’s failure to serve a valid statutory default notice invalidates his entitlement granted under s.87 of the Consumer Credit Act 1974 (as amended) (“the Act”) to demand earlier payment of any sum or to recover possession of any goods or land, but that the service of such an invalid statutory notice does not invalidate the creditor’s action of terminating any credit agreement in reliance upon the same, in this regard; I assert that this action brought by the creditor is bad in law and an abuse of process and ought to be dismissed without further notice.

 

s.87(1) of the Act clearly states the legislation applicable in respect of statutory provisions imposed upon creditors relating to the ‘necessary’ service of a default notice, in such cases where the creditor fails to comply with said obligation, the needs of the debtor, protection granted by the statute, far outweigh any needs of the creditor, who, in his said failings, has displaced his ordinary entitlement, that is, his ordinary entitlement to demand full payment of any sums, take recovery action of any goods or land and or enforce the credit agreement pursuant to s.87(1)(a)(b)©(d)(e) of the Act.

 

Failure, by any reason of the creditor, to comply with the said statutory requirements imposed, by way of service of an invalid statutory notice, will not and cannot possibly extinguish his termination and repudiation of the credit agreement nor shall such failure extinguish his demand(s) for earlier payment of any sum or any action taken by him to recover goods or land, the displacement of his ordinary entitlement remains out of reach to him. Without the service of a valid said statutory notice, there can be no action taken by the creditor against the Claimant/Respondent and Judgment cannot be sought and awarded to the creditor for the full sum claimed by him or for the recovery of any goods or land in contravention of the said statute.

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.

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.

 

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.

 

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.

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.

 

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