Ok, i have had a go at the WS, please can someone take a look at it and let me know if you think it is ok, the bits in red are what i am unsure about, so if you could give me some advice on the correct way to word them and the correct section numbers i would be grateful:
Witness Statement
1 I XXXX XXXX the defendant in this claim make the following statement in support of my defence of claim no XXXXXXX.
2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract as confirmed on the claim form.
3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.
4 At trial I shall contend that Under Sections 76(1) and 98(1) of the CCA 1974 (The Act) the creditor must deliver a Termination notice which complies with all of the requirement of Section XX of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no termination notice which complied in the respects referred to was ever delivered to me by the Claimant.
5 In any event, the Default notice that was served is non compliant not least the notice that was served, was served under s87(1), the format for normal credit or personal loan accounts and not the correct form for a current account.
6 I therefore put the Claimant to strict proof that any Default Notice sent to me was valid, 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 a document is laid down in the 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).
7 If the claimant decides that the default notice that was served is valid and the claim should proceed using the s87(1) then:
8 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).
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.
9 For a Creditor to be entitled to terminate an 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.
10 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…
11 The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.
12 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.
13 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 specify an accurate figure to remedy the breach, instead I was supposed to guess the amount needed to remedy.
14 In either case the Claimant’s failure to issue a valid Default Notice either under s76(1) OR s87(1) 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.
15 This was 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 78, 87, 88 and section 98 if they are to lawfully Default and Terminate, and enjoy the benefits of Sections 78, 87, 88 or 98.
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 before this claim was made before me. 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 XX namely the opportunity to seek early payment of a sum that was, prior to termination, only payable in the future.
17 The claimant claims £XX XX . I refute this is payable. This amount is default charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.
18 Prior to bringing this claim against me, Lloyds were informed that all the charges were being taken from benefit payments, and on two occasions said that they would be investigated but Lloyds used the The Office of Fair Trading v Abbey National PLC and others (2009) as an excuse to place my claim on hold and as a result failed to investigate my concerns.
19 I do not admit that I am in debt to the defendant, at all relevant times I have been in receipt of BENEFITS HERE, The sum referred to by the claimant in their claim is comprised of charges applied to my account and which are void by virtue s.187 Social Security Administration Act 1992. By seeking to appropriate the defendants benefits the claimant is treating her unfairly and in breach of their statutory duty contained in the Banking:Conduct of Business Regulations 2009, made under the Financial Services and Markets Act 2000.
20 187(1) Subject to the provision of this Act, (Social Security Administration Act 1992) every assignment of or charge on–
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.
21 After filing my defence on the 5th December, I received a letter from Wescot on the 12th December 2012 advising me that they had got a CCJ by default and that I should call them to make the payment to avoid the CCJ being registered, after calling the court to find out if this was correct, the court advised that they had not got the CCJ and that I should keep the letter to use as evidence. I feel that the claimants letter is intimidating and is trying to take advantage of my position as a litigant in person.
22 The claimant failed to respond to the original AQ and had to have a court order to make them submit.
23 I as a litigant in person have done everything that was requested from me, in the time scale ordered by the courts, however, a large financial institution with the backing that is not afforded to myself has failed to comply on at least one occasion and has made a joke of the judicial system that they used.
24 If the court is in agreement then I respectfully request that this claim be struck out as the failure of a valid default notice means that the claim should never have been brought in front of a court in the first place.
25 Alternatively in the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.
Date: xx xxxx 2013
Statement of Truth
I believe the facts stated in this Witness Statement are true
