Can you find a cause of action in this POC?

[Bill Shidding]

(Oh joy, just in time for christmas! What a lucky so and so I am!)

 

Hi All, need a little help with this Poc;

 

Money due for creditcard services, pursuant to a credit agreement regulated by the consumer credit act 1974, supplied (card number) to and at the defendants request as detailed in monthly statements rendered culminating XX/XX/XXXX.

Sum due at XX/XX/XXXX is £XXXXX.XX.

Statutory interest to date at 8%pa £XXX.XX.

The claimant claims £XXXXXX.XX, plus continuing statutory interest at £X.XX per day, pursuant to section 69 County courts act 1984. Costs.

 

So far as I can tell (also by cpr 31.14) they're not relying on a DN or TN. Whether by breach or contractual termination. So whats the legally recognisable cause of action? Is this the new M.O. in the light of the re-re-appeal of Mr Brndn? (same leeches).

 

Am I (still) right to say that Sec 69 county court act does not apply to regulated agreements?

 

Any thoughts, or pointers?

 

Cheers,

Bill

Edited December 18, 2012 by Bill Shidding

[Guest]

(.......

Am I (still) right to say that Sec 69 county court act does not apply to regulated agreements?

 

Any thoughts, or pointers?

 

Cheers,

Bill

 

s69 has never not been applicable to reg agreements. it is post judgment statutory interest that does not apply, re s74 re the 91 Order.

also, 1 years worth only of s69 interest is usually regarded as reasonable. award of s69 depends on the J in the circumstances.

and, a compliant dn would be required if was ended re a default. if not re a default, would be re the non default requirements.

Edited December 18, 2012 by Ford

[Bill Shidding]

Thanks Ford,

 

I believe I read a case that the J said "a hope and a prayer" of sec69 interest on a regulated agreement, I 'll have to look deeper into it.

 

Regarding the contractual termination, my understanding is that there must be a clause in the contract to allow (non-default) termination, and a notice must be sent allowing a period to repay.

 

Strange that they don't mention either a dn or (breach) tn in the poc, when they would usually do it that way?

Stranger still considering the history with Mr Brndn.

 

Bill.

[Guest]

hi

ok

s69 relates to interest up to judgment (allowable, up to the J and reasonableness. can be challenged. if awarded, should be no more than a year). s74 relates to post judgment statutory interest (not allowed re reg'd agreement re the 91 Order)

yes, i believe there are statutory requirements as well re non default termination. seems odd though that they would end without there being a default. afaik, brandon court of appeal case said that a compliant dn would be required if was ended re a default.

Edited December 19, 2012 by Ford

[unclebulgaria67]

Suggest sending an urgent CCA request. They will have to provide the original or copy of it anyway, if it gets to a hearing. I think I would also ask them to provide a copy of the default notice, even though not noted in the POC.

 

Is the claim amount over £5k ?

[Bill Shidding]

Thanks uncle,

 

Under cpr31, I have been sent a copy cca.

Also requested dn/tn and was denied because they (stated) will not be relying on any, and not mentioned in poc.

If their claim is not based on default and / or termination, what is the "legally recognisable" cause of action?

 

 

Will be small claims track.

 

Bill.

Edited December 18, 2012 by Bill Shidding

[AndyOrch]

Sec 69 is only applicable only up until the date of judgment

 

Andy

 

 

 

PS you should have great fun responding to that P.o.C

[Guest]

Sec 69 is not applicable unless the debt is over 5K

 

Andy

 

 

 

don't see that, where is that from?

thought the '5k' was re post j stat interest (s74, 91 Order) ie if judgment below 5k no post j stat interest regardless of whether regulated or not.

Edited December 18, 2012 by Ford

[unclebulgaria67]

Also requested dn/tn and was denied because they (stated) will not be relying on any, and not mentioned in poc.

If their claim is not based on default and / or termination, what is the "legally recognisable" cause of action?

 

I am not sure how they can argue their case without reference to a default notice.

[Bill Shidding]

Hi Ford,

 

ie if judgment below 5k no stat interest regardless of whether regulated or not

 

So they are trying it on then? Sorry, now see you added "post j"

 

 

Hi uncle,

 

I am not sure how they can argue their case without reference to a default notice

 

Or a termination notice if contractually terminated.

 

Been scratching my head wondering what the trick is.

 

Bill.

[AndyOrch]

don't see that, where is that from?

thought the '5k' was re post j stat interest (s74, 91 Order) ie if judgment below 5k no post j stat interest regardless of whether regulated or not.

 

Correct Ford...not sure where I got that from I think I was thinking if there was Administration Order

[Guest]

Hi Ford,

 

 

 

So they are trying it on then?

 

 

 

 

.

 

oh ok, yes, if when they say 'continuing' they mean re post judgment stat interest under s69 then no chance. s69 has nothing to do with post judgment interest. and anyway there can be no post j stat int re a regulated debt. or is that 'continuing' re stat interest from 'to date' to judgment?

but, they have also claimed stat interest up to.

also, as is small claims, they won't be able to claim much costs.

Edited December 19, 2012 by Ford

[Guest]

bill, re statutory notice requirements either way Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf‎

Edited December 20, 2012 by Ford

[Bill Shidding]

Hi, just to clear up my previous post;

 

Thanks Ford,

 

I believe I read a case that the J said "a hope and a prayer" of sec69 interest on a regulated agreement, I 'll have to look deeper into it.

 

The case I referred to was Armstrong v amex [2009] EWHC 3556 (QB)

 

23 The second limb relates to the judge's non-award of statutory interest, there being no particular evidence that he was ever asked to award it other than a prayer invoking s.69 of the County Courts Act 1984 in the claim form

 

I know there a differences in the sums claimed (different tracks).

The agreement I have been sent does not directly mention compounded interest either.

 

Thanks for your replies, any ideas on where to go with the failure to specify a cause of action?

 

Bill

Edited December 21, 2012 by Bill Shidding

[Bill Shidding]

Hi Ford,

 

s69 relates to interest up to judgment (allowable, up to the J and reasonableness. can be challenged. if awarded, should be no more than a year)

 

Is there any authority on challenging the time period?

 

Cheers,

Bill.

[Guest]

hi

haven't read that case atm, but yes any claim for interest should be pleaded correctly on the claim form as per CPR 16.4 and not just something random in 'prayer'. then up to j in consideration of all the circumstances whether to award or not. and if so, how much. if of course there is judgment!

afaik, there is 'authority' but don't recall particular case atm. i read it a while ago when browsing cases on bailii, but didn't note case down, where it was said re a claim brought after a number of years that up to one years worth of int would generally be regarded as reasonable. J should be aware of it if knows his/her stuff, if it comes to it. some creditors/sols seem to be aware of it as seen in some claim forms on cag where they say in their particulars eg 'limited to one year...' re claiming s69 stat interest.

Edited December 22, 2012 by Ford

[Bill Shidding]

Hi all, sent (holding) defence stating no cause of action specified, claim should be struck out or re-pleaded etc.

 

Now I have received a letter asking if I would be kind enough to allow the claim to be withdrawn, and sign a consent order to that effect.

 

As this is before allocation, I could dig in my heels and demand my costs are paid first, but I would like to ask if there is a downside to signing a consent order agreeing to the withdrawal of the claim and defence?

I think if I consent to the withdrawal the claimant "should" file a notice of discontinuance with the court, but I dont trust solicitors!

 

Any advice appreciated.

 

Cheers,

 

Bill

[AndyOrch]

Looks like they are trying to avoid wasted costs Bill (Fast Track NoD) Renegotiate the Consent for your costs and if they wont then yes providing they file NoD as you state.

 

Andy

[Bill Shidding]

Thanks Andy,

 

I will attempt to negotiate my costs, and then consent to their nod.

 

Bill

[creditcardmug]

S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

 

why arent they entitled to it? because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it!!

[Guest]

....S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

why arent they entitled to it? because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it!!

 

the 91 order relates to s74 interest not s69 interest. as posted before.

 

but, no worries. they didn't plead interest correctly anyway. and it has been discontinued.

Edited February 4, 2013 by Ford