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Hi I am hoping somebody can provide advice on next steps please.

 

For background my left my husband last year.

At the time we had a Together mortgage with Northern Rock.

He remortgaged the joint property and paid the existing mortgage -job done.

 

 

He did not repay the loan but agreed that he would continue to pay instead of buying me out of the property - I agreed.

 

 

Unfortunately he has fallen on hard times and agreed a repayment through a debt management company for reduced payments to NR. They are now taking us both to court for the full amount.

 

I only found this forum a few days ago,

the Court Order was dated 3rd March,

 

 

I responded with an AoS yesterday and sent a CPR31 request to Eversheds as well.

I know my defence should be back at the courts by the end of March -

can I do anything in the meantime or do I just wait for a response from the CPR request.

 

I cannot post any of the agreements or DN or Termination of the agreement because they were not sent to my new address (even though NR had it!) and my ex just kept sending them the the Debt Management company thinking they were resolving it.

 

Any advice on what to do next would be great

- what should I do if I don't get the CPR information back in time?

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Hi there,

 

Welcome to CAG.

 

You've done the right things so far with your AOS and the CPR request.

 

If you do wish for copies of the agreements and the default notices you may wish to send a Subject Access Request to Northern Rock ( as well as making sure they have your new address). This will cost £10 but will take up to 40 days to be delivered.

 

A good SAR letter is set out below -

 

 

Your Name,

Your Address

Your Postcode

 

 

The Data Controller

Company Name

Company Address

Company Postcode

 

 

Date

 

 

Data Protection Act 1998

 

Subject Access Request s7(1)

 

 

 

Dear Sir/Madam

 

ACCOUNT NUMBER(S): XXXXXXXXXXXXXXX XXXXXXXXXXXXXX

 

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the above account number.

 

The following is by no means an exhaustive list but in the main this is what I require.

 

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, all records you hold on me relevant to these accounts, including but not limited to:

 

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the accounts.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

 

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

7. Specific details of the fees/charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

 

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

11. A copy of all account statements for the duration of the agreement.

 

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

 

13. A True copy of the original consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

 

14. If it is contended you do not hold such data before such a date, please confirm this by providing the Certificate of Destruction.

 

15. Any Other information relating to these accounts

 

I enclose the statutory maximum fee of £10 by postal order. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable for the previous XX years.

Furthermore, such a request for specific information to confirm my identity will not deviate or inhibit the 40 days time limit allowed for compliance with my Subject Access Request.

 

 

Please note - If I do not receive all the data I have requested within the timescale specified above,

I shall seek a Court order obliging you to do so, together with damages at the discretion of the Court and without any further notice.

 

 

Finally, I would appreciate your Company's due diligence in this matter and look forward to receiving the documentation requested.

 

 

 

 

 

Yours Faithfully,

 

 

XXXXXXXX

 

 

 

 

 

Amend to suit, do not sign, enclose a £10 postal order and send by at least Recorded Delivery.

 

It may also be worthwhile writing to the debt management company to see if they will supply you with the agreement etc. or copies of them to give you a heads up.

 

You mention your defence is due soon - you may have to submit an embarrassed defence as the claimant has not supplied the neccessary documention on which the claim is based to you.

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Thanks Supa I'll be sending that letter this afternoon as well , I guess then I have to sit tight and see if anything comes in before the defence has to be sent.

 

Any ideas on what the defence will be if information hasn't arrived?

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OK I have the documents back from Eversheds - I have attached them all so people can advise appropriately.

 

Don't know if this confuses things further but it appears that my Exe's CM company admitted liability - does this mean that judgement will be passed automatically even though I am defending it?

 

Thanks for any assistance that can be given on drafting a defence - or anyway to sort this out at least for me. I can probably raise £10k for my half of the loan if needed - but I don't and can't afford to pay for it all. My Ex happily admits liability and wants to pay it if they will sort an arrangement with him.

agreement.jpg

Default.jpg

Defaultpg2.jpg

formaldemand.jpg

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unfortunately the pics are too small to read. hope someone can offer you some advice tho.

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Hi WAA,

 

here's a good guide how to upload the documents (courtesy of fuzzybobble) - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158645-how-upload-images-scanned.html

 

From what you have written, I am imagining that the loan was taken out in joint names - is this the case ?


 

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Please consider making a donation, however small, if you have benefited from advice on the forums.

This site is run solely on donations.

 

You can make a donation

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Have tried a different method, hope it works

 

 

I would be grateful for any advice people can give regarding this,

my defence needs to be in by the end of this week.

 

Thanks

Formaldemand.doc

default.doc

Default2.doc

creditagreement.doc

Edited by worriednanxious

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Hi Supa, yes the loan was in joint names, I have reloaded the docs hope it helps. I did try to find the info on how to do it but couldn't. I'm quite new to all this sorry!

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NR have made a slight error with your default notice in as much as they haven’t allowed you the statutory period to remedy any breach, this being a minimum of 14 days after service of the default notice.

 

The DN is dated 25/09/2008 which was a Thursday and if NR posted on the Thursday then a minimum of 2 working days must be allowed for service of post – so the earliest day you would have received this notice would be the Monday – 14 days to remedy the breach starts from the 30/09/2008 – so by requesting that you remedy the breach by the 12/10/2008 they have allowed you 13 days only.

 

The DN therefore represents a breach of regulations and is effectively invalid. NR have confirmed termination of the account on the back of an invalid DN so your liability toward them would be limited to the amount owed under the agreement at the point of termination – this would not be the full balance because that can only become payable on demand after first issuing a compliant DN.

 

At most you would be liable for the amount of instalments due on termination date and this would include any arrears owed under the agreement – this figure would be the arrears stated in the termination notice.

 

Your defence must put the Claimant to strict proof of service of the DN.

 

Read this informative thread here.

 

As to the agreement itself – can’t read it that well but I can’t see anywhere on the agreement where it gives the amount of monthly instalments – I notice in the DN the monthly instalment is £194.80.

 

To not state the monthly instalment could render the agreement unenforceable because a prescribed term is missing.

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Right thats seems like good news - I'll get looking on creating a defence based on this information tonight - then I'll post it up for comments.

 

Does anybody have any pointers/links for defences of a similar nature - i.e the DN error and the possible CCA error, I have been searching for a while.

 

Thanks:-)

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Try this link for some good points regarding the DN

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/162101-eversheds-county-court-paperwork-4.html#post1765042

 

The whole thread should give you everything you need TBH - the defence changes later but the info regarding the DN and prescribed terms is all there - best to do a bit of reading so that you understand the argument.

 

Good Luck.

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Ok I have compiled the following defence with a mixture of the defect DN and noting that I cannot compile further defence until additional information is received e.g statements etc. Can somebody advise if this is ok - I need to get it in the post by Thurday. Thankyou;)

 

1 The Defendant admits entering into an agreement with Northern Rock and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which Northern Rock and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 Without prejudice to the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits the receipt of the default notice relied upon by the Claimant, namely a notice dated 25 September 2008. Save that the notice was served upon the Defendant on a date thereafter and that service was by post, the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her. The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was before 13 October 2008 which was not a date which was 14 days after service of the notice.

 

3 Further to the matters set out at paragraph 2, the Defendant avers the Claimant terminated the agreement on or after 8 December 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

4 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

5 Further and in any event, by reason of the matters set out at paragraph 2 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 3 hereof were steps which the Claimant was not entitled to take.

 

6 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8 The Claimant’s claim to be entitled to £24, xxxx or any other relief following termination of the agremeent is denied.

 

 

9) Further The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the method the claimant calculated any outstanding sums due.

10. Further to the case, on 18/03/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 18, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, repayments by myself.

11. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

12. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

13. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 10. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

9. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 2005, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Dated:

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Looks pretty good to me – you can ask again for special directions at AQ stage.

Perhaps squeeze the following in just to put further pressure on them.

The Defendant puts the Claimant to strict proof of the method and date of service of any Default Notice they seek to rely on.

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Can anybody advise - should I leave in paragraph 4 as I don't know if the requested figure does include such fees etc because I have not received a full breakdown as yet.

 

Would like to get this off this afternoon so any help would be appreciated.

 

Thanks:)

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Hi Worried

 

could you possably type up the Claimants P.O.C (verbatum) in order to cross check your defence to the particulars.You need to refute all points of the claim to submit a successful Defence.

 

Regards

 

andy;)


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Just a note about the DN - the 2 days is assuming 1st class post. Need to get them to proove it was sent by 1st, otherwise it is assumed to have been sent by 2nd which is then 4 days for service.

 

The form of the prescribed sections is not compliant with the 1983 regs. specifically the underlined text in the "If the action required..." bits should be afforded more prominence as the test around it is in bold. Also, the "DO NOT" in the next statement is not even underlined, and it should be.

 

I also love the "Error! Not a Valid Embedded Object" as the signatory :O

 

Onto the agreement, in addition to missing the monthly payment amount. it is missing the total amount of credit or the total charge for credit (e.g. the total amount of interest) and the date of the monthly payments.

 

The agreement is headed wrong - it should be "fixed sum loan agreement regulated by the consumer credit act 1974"

 

The agreement is missing details on passing of your data.

 

Also, I am not sure why it says "do not date" in the sig box...

 

So, two big issues - the agreement is not enforceable, even by the court, as per section 127.

 

IF you loose on that point, then the agreement was unlawfully rescinded, meaning only the arrears are due, and you could counterclaim for the unlawfull rescission (balance of default) plus damage to credit rating (£1000, special damages). This damages stuff is in Khpoarh v Woolwich iirc.

 

Thanks,

H


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Thankyou everybody for your help. The POC are:

 

The Claimant's claim is for the sum of £2xxxx.xx being the amount due on account ref 12345678 being a credit agreement regulated by teh consumer credit act 1974.

 

A consumer credit default notice has been served by post on the defendant and has not been complied with Interest continues to accrue on the amount due at the contractual rate stipulated in the credit agreement.

 

Have also just noticed that the amount they are claiming in the court is more than the amount on their termination notice - could this be an error or interest?

 

Thats all. Will the defence do, should I leave paragraph 5 in? Thankyou so much for your help with this - I was really worried and concerned before finding this site but am feeling loads better about it now.:-)

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Thankyou everybody for your help. The POC are:

 

The Claimant's claim is for the sum of £2xxxx.xx being the amount due on account ref 12345678 being a credit agreement regulated by teh consumer credit act 1974.

 

A consumer credit default notice has been served by post on the defendant and has not been complied with Interest continues to accrue on the amount due at the contractual rate stipulated in the credit agreement.

 

Have also just noticed that the amount they are claiming in the court is more than the amount on their termination notice - could this be an error or interest?

 

Thats all. Will the defence do, should I leave paragraph 5 in? Thankyou so much for your help with this - I was really worried and concerned before finding this site but am feeling loads better about it now.:-)

 

is the above highlighted point within the agreement?

 

Regards

 

Andy


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If not you need to refute it with something along the lines of:-

 

 

Regarding that which is denied, the claimant seeks to claim contractual interest pursuant to section 69 of the County Courts Act 1984. It is therefore averred that this claim is brought in relation to a personal loan which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

 

Regards

 

Andy

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I don't know about that part being stipulated in the agreement

- I don't have the readable copy with me so will check when I get home.

 

 

In either case I don't have the full agreement just page 1! I will check what I have and pop back later to let you know.

 

I have checked the part of the agreement I have

- although the copy I have isn't much clearer than the scanned copy.

 

 

I do only have page 1 of the agreement and most of the terms are on the 2nd page, which they haven't provided me with! I have subject access so can only wait to see if the other page turns up.

 

with regards to monthly payment amount not being stated they do have a about 5 or 6 statements underneath the amount and period stating that the monthly payments may be adjusted due to changes in interest rates etc.

 

This loan was from the Northern Rock together Mortgage product - the mortgage part has been cleared via a re-mortgage so we only have this remaining.

 

Does any of this affect my defence?

Any answer on paragraph 4?

Can I include that in my defence if I don't actually know if they are included?

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"Does any of this affect my defence? Any answer on paragraph 4? Can I include that in my defence if I don't actually know if they are included?"

 

Well you can bet your bottom dollar that there will be so include the above

 

With regards to my earlier point re the agreement if you have not been suppied page 2 which contains the T&C then the creditor as failed to complete your request and remains in default, which should also be supplied with statements.

 

 

Regards

 

andy


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Thanks Andy - I will send the defence off to the courts tomorrow. Should I include the defence you gave regarding the interest payments - only because again I don't know if they are rightly claiming because I don't have the entire agreement?

 

In regards to the agreement - do the statements regarding monthly amounts conform to the credit agreement act? I know we will have to wait for the rest of the t&c's before we can discover if anything else is wrong but the DN seems like a great place to start.

 

Thanks for all the help

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Thanks Andy - I will send the defence off to the courts tomorrow.

 

In regards to the agreement - do the statements regarding monthly amounts conform to the credit agreement act? I know we will have to wait for the rest of the t&c's before we can discover if anything else is wrong but the DN seems like a great place to start.

 

Thanks for all the help

 

Irrespective of the monthly payments I have just looked at the agreement again and can not see anything referring to a (see page 2 or overleaf) therefore your signiture is not within the 4 corners of the agreement and T&Cs and IMHO is unenforcable due to that fact ( the fax says 2/2 so lets not write it off completly

 

Regards

 

Andy


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Just under the declaration by you part the first statement is:

 

You confirm that you have read and understood the terms and conditions above and overleaf; your particular attention is drawn to Clause 14 overleaf.

 

Although thinking back I belive this is a copy of the original we signed - which if I remember right was a faxed copy of the agreement. I have literally just spoken to my ex who miracously has found a folder of old paperwork regarding mortgages etc. He will be handing the whole thing over to me tomorrow so I can double check whats there and what we did actually have when we signed. If we signed a copy that was a fax and at the time only had page one - could this make a difference?

Edited by worriednanxious

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Just under the declaration by you part the first statement is:

 

You confirm that you have read and understood the terms and conditions above and overleaf; your particular attention is drawn to Clause 14 overleaf.

 

So I guess that answers that then.

 

Ah didnt see that your eyes must be better than mine:rolleyes:

 

Its a very bad microfiche copy bet they didnt scan page 2 though you need to put them to strict proof to disclose the page 2 the original they will have to if this gets to trial

 

Regards

 

Andy


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