Post Office/Bank of Ireland. credit card - CCJ & Restriction sold to cabot - reduced settlement?

bradfordlad · February 14, 2010

Hi everyone. I think I need some advice quite quickly now!

To recap - Bank of Ireland credit card fell behind, offered reduced payments on a pro-rata basis - they said "not enough".

We received a default notice November which was defective as it didn't give us enough time to remedy.

We received a letter from BoI telling us that "our facility has been revoked" a couple of days after the DN expired.

We received a monthly statement from BoI a couple of days after that showing the credit limit as "£0" and the minimum payment due was the total outstanding balance.

We received a "Legal Action Pending" letter from GPB solicitors on Christmas Eve.

We received a County Court Claim Form issued 21st January (date of service = 26th Jan). - I responded online on 2nd February, to say I would be defending the claim in full.

On 5th Feb I wrote to GPB solicitors asking for a copy of the documents mentioned in the Particulars of Claim (just the CC Agreement) under CPR 31.14.

GPB wrote to me on 10th Feb to say they've asked their client for a copy & will send it in due course.

SO - As they received my letter on 10th Feb, how long do they have to provide the document? FYI, it was a credit card applied for online and only about 18 months ago.

By my calculations, the defence has to be submitted by 23rd Feb, but we are away from 17th until 21st so it doesn't give me much time.

Could any kind soul possibly help me with putting defence together?

The bottom line is we wrote lots of times explaining that we were paying all we could, but they kept asking for the full amount - not even an offer to help for 6 months or so - the DN issued was defective so that is the ace up my sleeve, and if they terminated the account (which they may or may not have done - they described it as revoked) then where do I stand there?

I'll be watching this thread like a hawk so if anyone needs to know anything please ask.

Thanks in advance (again) for everyone's help.

BL

citizenB · February 15, 2010

26th January, Northampton CC claim form arrives - details are:

PARTICULARS OF CLAIM: They are claiming the full outstanding balance,in respect of monies due at this date under an agreement in writing regulated by the Consumer Credit Acts 1974 and 2006, and the claimants claim, the said sum of £xxxx.

(The amount of the claim is in excess of £5,000)

Is the text above the EXACT wording on the POC ? If not, please type it up as is (you can leave out the value ).

I see you sent a CPR request to the solicitors and have not yet had sight of any documents.

What documents did you ask for ?

I see the account was opened around 18 months 2 years ago, in which case it might be hard work finding anything wrong with that which leaves the DN and the fact they have refused a reasonable request for reduced payments. ??

As far as I can see you will be relying on proof of postage for the DN in order to make in invalid .

Plus you are not attempting to duck your obligation, but have had a reduced payment refused.

bradfordlad · February 15, 2010

Hi , and thanks for the reply.

The EXACT wording is as follows:-

"THE CLAIMANT'S CLAIM IS FOR THE SUM OF £7,XXX.XX, in respect of monies due at this date under an agreement in writing regulated by the Consumer Credit Acts 1974 and 2006, and the Claimants claim the said sum of £7,xxx.xx."

In the CPR I asked for a copy of the document named in the POC, namely the Agreement. I followed one of the links kindly provided earlier in the thread.

As for the rest, you've got it in one. We wrote to them several times, and they didn't mention the reduced payment other than in their first reply of 28th October. This seems like a typical BoI reply, here it is:

"Thank you for your recent correspondence. The current balance on the card is £7,xxx.xx. Under the terms & conditions of the account, a minimum payment is required on the account. This payment is calculated at 2.5% of the balance. The current minimum payment of£4xx.xx is due by 18/11/2009 to prevent further action being taken. Please note this payment includes two months arrears.

Therefore we are unable to accept the payment proposal of £3x.xx per months as it is insufficient to cover the required minimum payment as outlined above. Unfortunately interest and charges can only be suspended if the account is referred to our legal department. A default notice has been issued on your account today, if the full minimum payment is not cleared when the default notice expires on 16/11/2009 the credit facility will be withdrawn and the account shortly referred to our legal department."

So what they have said is basically, sorry to hear you cant pay the minimum payment. We can't accept your reduced payment, as it's not the minimum payment!! No sh*t, Sherlock!

They have now suspended interest & charges, although not GPB Solicitors charges of course!

Does this help?

supasnooper · February 15, 2010

I really would advise that you have a crack at the defence yourself for the simple reason that you are the one who will have to appear in front of the Judge ..........and perhaps guide him through the relevant Consumer Laws.... call it revision if you wish.

I trust you have been researching your case and have spotted some good defences to pick the best bits from.

Here's some threads for you to look at -

pt2537 defences. Including other defences that pt has approved.

CL Finance Ltd. Recieved a court claim form**WON** Discontinued

Lloyds TSB Credit Card - Claim form received

Help! - AMEX No CCA and they've started court action. **DISCONTINUED**

I'd also do a search for threads were some CAGers have managed to include some defences about DN's.

Please do post it up when you've had a go for comments.

bradfordlad · February 15, 2010

I've been reading up supa, I thank thats the problem!

Will we DEFINITELY have to go to court? This debt is actually in my Wife's name, and she won't do it. Se'd rather take a CCJ, but I'm stubborn!

I'd hoped a court official (DJ) might look at the case & decide based on the facts? Maybe wishful thinking!

I'll try come up with something today, so will hopefully post it tonight.

Thanks all

bradfordlad · February 16, 2010

Can I ask - Is it possible to ask the court for an extension to submit a defence?

I wrote to GPB on 5th Feb under CPR 31.14 asking for a copy of the Agreement mentioned in the PoC. They wrote on 8th Feb acknowledging reciept and that they'd asked their client for a copy. In my letter, I gave them 7 days. Its now been 8 days since it was received, and no sign of it yet.

We're going away for the next 3 days, so won't see any post until Sunday night, but defence has to be submitted on Tuesday. What do I do if nothing arrives?

Also, at waht stage do I mention the DN being invalid due not enough time being given (due to postage).

Starting to panic now! HELP!!!

BL

DonkeyB · February 16, 2010

Yes, but you need the agreement of the claimant I think and you must inform the court - see PT2537's excellent thread here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

Lots of info there.

bradfordlad · February 21, 2010

Hi everyone, well - my defence has to go in tomorrow at the latest (in fact it might be Tuesday - I'll post the dates tomorrow). As of now (Sunday night), I haven't received the copy of the Agreement from Bank of Ireland or Geoffrey PB Solicitors - does this means I'll have to submit an embarrased defence, or do I have to do something different? There seems to be differing advice on different threads...

Just to clarify, the bits I'm confused about are:

1) No copy of agreement received since CPR 31.14 request on 5th February - how do I submit a defence?

2) Default Notice was defective in that it only gave me 13 days to resolve, based on 2nd class postage. When do I bring this up? Is it unlawful recission as the account is now payable in full so presumably "terminated" (although not confirmed in writing).

This aside, my defence was going to be along the lines of the points made by citizenB above, in that a) the DN is defective, and b) I have offered several times to make reduced payments, but they declined/ignored my requests. Am I on the right lines?

I hope someone picks this up in time - I'm really worried now.... cheers

Edited February 21, 2010 by bradfordlad

42man · February 22, 2010

Just adding some useful stuff on your thread BL....

QUOTE - "I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

The reasoning is simple:

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 application and shell out £40.

-----------------------

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

(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.

citizenB · February 22, 2010

Below is an embarrassed defence. This should buy you more time. But you really must be looking forward to the time when you are going to have to submit a fully pleaded defence.

[QUOTE]

In the xxxxxxxx County Court

Claim number

Between

xxxxxxxxxxx- Claimant

and

xxxxxxxxxxxx- Defendant

Defence

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

4. On receipt of the claim form the Defendant sent a request for a copy of the agreement which forms the basis of this claim. This request was made by way of CPR31 14 on (DATE)

5. The Defendant has confirmed via the Royal Mail Website that this request was received by the solicitors on (DATE). However, there has been no response.

6. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

7. I respectfully request the court’s permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

Statement of Truth

I xxxxxxxxxxx, believe the above statement to be true and factual

Signed .....................

Date

The bits in red would only be required if you were to post the defence. You will need to add the dates where indicated in blue.

HTH

citizenB · February 22, 2010

I see that 42man has added a draft defence that was prepared for a dodgy default notice. You could if you wish amend that and submit with added points as to the missing agreement as follows : Understand that you are limited to 8, 000 characters (including spaces) online. If it goes over, you will have to post via Special Delivery (and by 12noon today) in order for it to arrive tomorrow.

I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

1: It is admitted that the Defendant entered into a contract with the Claimant which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

1a: A copy of this contract has not been provided attached to the Claim form.

1b: Neither has a copy of the contract been provided in response to a request made via CPR31.14. This request was made on receipt of the claim form and receipt by the acting solicitors confirmed by the Royal Mail Track and Trace website.

Further to that already pleaded ...

The Need for a Default Notice......

bradfordlad · February 22, 2010

Amazing, thanks guys - can I just pick up a few points?

In 42man's post, there are two point number 2's. The second one "2. Practice Direction" - should that be point 3 or is it a continuation of point 2?

Points 3 & 4 both refer to service by 1st class post, but in my case I want to draw attention to the fact that they didn't give enough time, based on 2nd class postage, or get them to prove otherwise - how do I word it?

Not sure if I should leave points 5 & 6 in as I don't know whether the figures quoted are in fact inaccurate - except if you allow for unlawful charges...

Point 14 about unlawful charges & interest - there would have been charges for late payment - usually £12. Are these unlawful, or should I not risk it? In what circumstances would the account be classed as "in dispute"? I didn't send a CCA request to them (other than my CPR31.14 request on receipt of Service)?

Point 15 - Is this statement true given the Agreement is also regulated by the CCA 2006?

Point 16 - I have never formally been advised "Your account is terminated". However the DN says that if I fail to make payment by the date specified, then they will 1) terminate the agreement without further notice on or after 16th November, 2) the balance in full being £xxxx will then become due & default interest will continue to accrue.

Also, for the record, the POC issue date was 21st January 2010. By my reckoning, the 28 days runs out tomorrow - GULP, or is it today?

I will post my shortened defence soon...

bradfordlad · February 22, 2010

Here's my attempt at the online defence:

I, xxx of xxxx am the defendant in this action and make the following statement as my defence to the claim made by Bank of Ireland.

1. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

1a) It is admitted that the Defendant entered into a contract with the Claimant which was regulated by The Consumer Credit Acts 1974 and 2006. No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

1b) A copy of this contract has not been provided attached to the Claim form.

1c) Neither has a copy of the contract been provided in response to a request made via CPR31.14. This request was made on 5th February and receipt by the acting solicitors confirmed by their letter of 10th February 2010.

2. 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.

3. The claim is for the early repayment (ie before the full term of the alleged 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 default notice 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 Secretary 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.

3. 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."

4. Practice Direction