Lowells claimform - 2005 Lloyds Credit card - No DN? in court tomorrow***Claim Dismissed***

[evcharging]

I have read a lot about court action failing because the Default Notice has not been served in the prescribed format.

 

But in my instance, the alleged creditor cannot provide ANY Default Notice in any format, prescribed or otherwise.

 

Does this mean that court action will fail, and if so, which section of the Consumer Credit Act applies?

 

Any help much appreciated!

 

Chris

[obiter dictum]

The creditor only has to show one was sent out with their internal computer records

[evcharging]

At present they don't even have that!

[dx100uk]

creditor? or fleecing DCA?

 

 

have you actually got a court claimform

or just worrying?

[evcharging]

It's a DCA.

 

I have defended the matter all the way and the court hearing is tomorrow.

 

I was initially confident that without a Default Notice they couldn't get a judgment but they have continued to pursue it which is why I am looking for clarification!

 

[obiter dictum]

The DCA will need to be able to prove that a Default Notice served under 87(1) CCA 1974 was issued by the original creditor prior to termination and sold to a DCA.

 

Without that they are stuffed

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87

[evcharging]

That's great - thanks for that, very much appreciated!

[dx100uk]

what defence did you file please and

 

 

did you send a CCA request

and

a CPR31:14

[AndyOrch]

Thread moved to Financial Legal Issues..in view of the court claim.

 

Regards

 

Andy

[dx100uk]

can you fill this in please so we have all the details too:

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**(1-Viewing)-nbsp

 

 

thanks

[evcharging]

I filed a three part defence:

 

1. That the debt is not mine to start with - evidenced with electoral roll information and a contemporaneous signature that differs from that on the agreement.

 

Notwithstanding the above;

 

2. That the debt had not been assigned - this was later countered with a supposed letter of assignation.

 

3. That a Default Notice was not issued - this to date has not been countered and in the claimants statement they say, "Although the Claimant has not yet received a copy of the Default Notice (thereby admitting there isn't one!) in relation to this matter from the Originating Creditor, the Claimant again refers to the letter adduced (the alleged notice of assignation and a further introduction letter from the DCA) which clearly sets out the sums due under the Defendant's Agreement with the Originating Creditor."

 

They go on to say further in their statement that despite no Default Notice being served, "The Claimant will submit that the Notice of Assignment served on the Defendant constitutes as a valid demand for payment." This statement suggests that they can waive the need for a Default Notice by having a Notice of Assignment. Is this right does anyone know?!

 

Thanks for the help guys - very much appreciated,

 

Chris

[dx100uk]

Default notices, litigation and section 127(3) of the Consumer Credit Act July 2010

.

For a creditor to enforce a credit agreement against the debtor,

he must serve the latter with a default notice,

this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).

.

Generally, the prescribed form of a default notice according section 88 is as follows:

.

"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."

.

Section 127(3) of the Consumer Credit Act 1974

.

Should the debtor be sued for the outstanding amount,

it may be open to the debtor to raise an argument that the agreement is unenforceable

because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.

.

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').

Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

.

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

.

In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

 

 

................

 

 

you need to be very careful here on the DN front

99/100 the OC will always default before sale

what was the debt

[evcharging]

The alleged original debt is a Lloyds TSB Credit Card originating September 2005.

 

From the post above do I therefore understand correctly that as it falls before 6 April 2007 the the fact that 127(3) has not been complied with the breach of that term renders the whole agreement unenforceable?

 

Thanks

 

Chris

[dx100uk]

ideally you should have sent the OC an sar to get the comms log

if that shows [and that's all they have to do] that a DN was sent, then its get sticky

very sticky

 

don't buy the dodgy signature excuse either

 

I take it you did have the card and the agreement is your sig?

 

did they send T&C's with the CCA return and they are the correct ones?

[theoldrouge]

have you requested a copy of the agreement under s78?

 

 

are you still contending that the debt is not yours?

[evcharging]

Thank you for all the advice on here. I just wanted to update you following the Court Hearing this morning:

 

The District Judge accepted both of my arguments and the claim by Lowell Portfolio 1 Ltd was dismissed.

 

It was held that:

 

1. On the balance of probabilities I was not the debtor and the Claimant could not provide any evidence to support that their claim was against the right person.

 

AND

 

2. The Default Notice was on the balance of probabilities not provided.

 

AND

 

3. The documents that the Claimant sought to put forward in lieu of a Default Notice did not constitute such as they were not in the prescribed format.

 

All in all WIN WIN WIN!

 

Thanks again for all the help and advice - just goes to show you can beat faceless companies when armed with the right information and support!

 

Cheers!

[AndyOrch]

Well done evcharging

 

Thread title amended to reflect the outcome.

 

Good stuff and regards

 

Andy