Full Balance. 'It does not matter, the claimant never terminated until 3 monthes later, you did not pay anything in that time, where as you had plenty of time to pay you did not. Therefore S87 is not relevant'. Argued until Judge got angry. Truth is this was always going to be the outcome, Judge kept saying 'this can't be right!'. Nice young man from top firm of barristers was silent. " I hope you have some point of law that will counter this, Mr ******** so we can put this to bed" Enter , argued that the Judge was wrong to ignore statute law and Swaine was a higher court. He was swooning over and taking advice from counsel, I do not know if this was a father 'wish he was my son' thing, or of a sexual nature, but I did incurr in some nasty, nasty visions. aaaaaaarrrggggghhhhhhh oh well, sh*t happens nobody's dead. good luck

no regulated loan

But in swain photocopier was taken away so agreement was enforced. Argued that taking away time to pay by demanding full balance was enforcement. Argued for 3 hours Mcguffick was covered extensively in my skeleton. 2 further DN's sent in past two weeks neither valid. Judge just brushed away these and said 'so, they can issue another one tomorrow it's not relevant'. the case is 8 july I still have not got a valid DN! There going to get judgement without ever serving a valid DN:confused: as they don't have time to serve another. judge used Para 33 & 34 verbatim. So statute law and statutory Instruments are not relevant anymore, go figure. I'll try that if I get stopped in my car:mad: Judge used to work for large bank:(

Hi PT Hope your well How long is not long and can I do anything about it.

No The Consumer Credit (Enforcement, Default and Termination Notice Regulations 1983 (SI 1983/1561) were scrutinised, thats how he agreed prescribed terms are missing.

should add it was an appeal heard at thesitting as a judge of the high court, (£$%*). To avoid confusion this judge was at the AMEX v Brandon not my case.

Section 87 is not relevant! Handed a copy of the above case at court today. Judge agreed that DN was received 4 days after date to comply. Prescribed terms were missing. That it did not comply with S87, but S87 was not relevant. Maybe one of the lawyers/solicitors on this site can post up the case. Swayne & co overturned. Need to get drunk

This has been going through the courts since the middle of 2008.

Sorry forgot to thank you lexis, thank you.

Thanks, yet again DD The slimebags after being pointed out the relevant statues and case law have now sent another DN. Guess what, 4 days short. They realised their mistake and so the claimants Solictor sent another........;-) This is getting beyond a joke Application on the way, me thinks Many Thanks......again

Hi All What do you think of this reply regarding a dodgy DN? I quote; The purpose of s.87 Notice is to remind the debtor or hirer that s/he is in breach and to give him/her the opportunity to remedy it (if capable of remedy). A conclusion that service of the Notice is a procedural requirement which exists independently of the cause of action arising does not undermine that purpose, particularly since the commencement of proceedings is a step taken with a view to enforcement, rather than constituting enforcement itself (see also McGuffick v RBS [2009] EWHC 235 (Comm) for an analogous decision on enforcement). Many Thanks

I have in my POC and witness statement used S9(4) charges for credit, S60, S61, S65, S127(3),(memory) and more, it's on the other computer. I can post it up tomorrow. I do not know if I have the ability to argue the above, where as I feel confident about the DN.

I suggest the insurance really cost 612.13. the PPI 3,950 - the commissions. The other commissions would be recouped from the interest off this one part of the agreement. Cpr 31.14/.15 request for disclosure of the Insurance documents and request to see the originals, plus disclosure of the documentation of the further £700 commission. I was told they did not exist. All I had was one 'insurance summary' and one 'insurance policy summary', which was not a policy, ie; no name, no policy number, just meaningless paper you could download from the lenders website. Went to court, Judge said it was nothing more than a 'fishing expedition' and hammered me with costs.

Hi The loan agreement was properly executed. The commissions appear nowhere in the loan. The PPI was 3,950 Supplier recieved commission of 2,237.87 Broker, (I did not know I had one) recieved 1,100 for PPI A further commission of 1,050 paid to broker for loan (20,000) A later disclosed commission of 700 as an overrider. I have tried to find legal rep for over a year, I do qualify for legal Aid, (but cannot find a sol for civil legal aid). Not one of my enquiries has even led to discussion of this case. I do not think the Claimants sol would consent to any defence change.

Hi PT The claimants have been made aware of this, it is not in my pleadings as witness statements have already been exchanged. I would need to enter this via N244? It is more like a skeleton, I was not sure of the best approach via the N244

Short story Secured loan, regulated by CCA 1974, took out Dec 05. Had accident at work, January 2006 (self employed) been unable to work since. No insurances paid out. House repossed, was told their was enough equity to pay off loan. But there was a shortfall, loan company recieved 11.5K from sale proceeds and are taking me to court for a further 19k. Found secret commissions after a SAR as well as PPI mis-sold, fighting on those fronts. Discovered invalid DN it seems the best route to make this go away.

Yes, It is regulated by CCA 1974.

Hi Pt I want them to discontinue.

Thanks Vint The DN was 6 days short if posted 2 class Two Statements were missing (para 6) The Claimants own notes Enquiry reveal DN was not posted until 23rd, (the date to rectify) Para 13. Maybe I should move para 13 to 12 and 12 to 13?

Hi I have been engaged in this battle for 2 years now, and am currently defending on S18, PPI mis-selling and secret commissions. It's due to goto trial on the 8th July. I have now discovered my Default Notice is invalid and will need to apply to the court via N244. I have prepared a witness Statement for the application, I have appendixes to add, but wonder if you good people could check it over for errors and improvements that could be made. any advise would be most welcome. Many Thanks XXXXXXXX COUNTY COURT CLAIM NO. xxxxxxx BETWEEN xxxxxxxxxxx LTD Claimant and xxxxxxxxxxxxxxxxx 1ST Defendant xxxxxxxxxxxxxxx 2ND Defendant ---------------------------------------------------------------------------- WITNESS STATEMENT ---------------------------------------------------------------------------- The Credit Agreement, (no xxxxxxx), was at all times regulated by the Consumer Credit Act 1974. The above mentioned document contained the following wording immediately above the Defendants and Claimants signature, ‘Sign it only if you want to be legally bound by its terms’. 1. This Witness Statement is filed pursuant to CPR Part 3.4(2)(a). The Need for a Default Notice and Relevant Statute Law 2. The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they are entitled to the benefits of Section 88 of the CCA 1974. 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. 3. 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 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. (2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed. (3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it. (4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it. (5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid 4. The word must, makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. 5. The prescribed format for such documentation is further enhanced in Paragraph 2 (2), of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain-- (a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974; (b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and © statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule. 6. Further to paragraph 5 above the following paragraphs have not been complied with; (b) Paragraphs 3 © and (d) © The following statements at paragraph 4 and 10; 4. “IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”. 10. "IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU". 7. I note that the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). Do not allow any variation in the form of these statements and therefore it is averred that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence. Establishing the Date of Service 8. 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. 9. In a Practice Direction made by J R BICKFORD SMITH Senior Master Queen's Bench Division Practice Direction, dated 8 March 1985, it says 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. 10. Further to point 9 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. 11. The Default Notice supplied by the Claimant is dated (Tuesday) 16th May 2006, to allow service in line with the statutory requirements mentioned in points 8, 9 & 10 above, 2 working days were required to allow for 1st Class postage and 4 working days for 2nd Class postage. a) Thus the date to Rectify for 1st Class postage should be 7 calendar days from Thursday 18th May 2006, namely Thursday 25th May 2006, not the 23rd May 2006 as stated in the Default Notice. b) In the event of 2nd Class postage the date deemed served would be Monday 22nd May 2006. Thus the 7 calendar days to rectify would have been Monday the 29th May 2006 not the 23rd May 2006. c) The Default Notice does not allow the statutory 7 clear days for me to remedy the breach. 12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339, (appendix CL AA), 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 us as it failed to allow the required time to remedy the alleged default. 13. Notwithstanding the matters pleaded above the Defendants aver that the Default Notice was not served before or even on the date to rectify, but after the 23rd May 2006. The Claimants own ‘Notes Enquiry’, in an entry dated the 16th May 2006 by xxxx confirms xxxx, sent 23/5. (xxxxx is code for the Default Notice as confirmed by mail dated 28 April 2010), 14. The Claimants Default Notice also terminated the agreement, I quote; And If you do not pay the outstanding sum under the Loan Agreement by that date, this Notice is treated to be our demand for repayment of the balance outstanding on your loan account. The Defendants accept this termination. 15. The Claimant’s failure to issue a valid Default Notice prevents 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. 16. The Invalidity of the Default Notice and termination and the subsequent further termination on the 5th September 2006 by the Claimant, is; i) An unlawful repudiation of the contract. ii) In breach of Section 88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). iii) And as such all entitlement of the benefits of Section 87 of the Consumer Credit Act 1974 have been forfeited for evermore and is now subject to section 106 of the Consumer Credit Act 1974. Ineffective securities. 106. Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges)— (a) the security, so far as it is so provided, shall be treated as never having effect; (b) any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith; © the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and (d) any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety. Relevant Case Law, Wilson v Howard Pawnbrokers {2005} CLLR2 and Wilson v Robertson (London) Ltd (2006) EWCA Civ 108. Damages 17. Furthermore the failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendants a claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119); also Durkin v DSG Retail Ltd and HFC Bank PLC (Sheriffdom of Grampian Highland And Islands at Aberdeen, A187/04, March 2008), this Scottish case based on English law, reviews the relevant authorities particularlyKpohraror v Woolwich Building Society 1996 4 All ER 119. 18. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4 All ER 119 was not interfered with by the Court of Appeal in 1996, and in Durkin v DSG Retail Ltd and HFC Bank PLC 2008, this figure was increased to £8,000. I quote at 117; ‘Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate’. 19. 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 23rd May 2006. Terminating an Agreement within 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. 20. 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; a) Strike out the Claimant's statement of case pursuant to CPR Part 3.4(2)(a). b) The Defendants also claim repayment of the monies realised through the security held by the Claimants on the 9th May 2007, namely; £xx,xxx.xx at the same contractual interest rate enjoyed by the Claimant; i) 9th may 2007 – 7th June 2007 = % 10.9280 ii) 8th June 2007 – 30th August 2007 = % 11.4280 iii) 1st September 2007 – the present = % 12.1780 And further interest from 21/05/2010 at £3.99 per day until settlement. c) Damages as per paragraph 18 and 19 above. e) An order for wasted costs, the amount in attached schedule XXXX in relation to Rule 48.6 of the Civil Procedure Rules, see, Wulfsohn v Legal Service Commission [2002] EWCA Civ 250. Statement of Truth I XXXXXXXXXXXxxxx, believe the above Witness Statement to be true and factual, and, I XXXXXXXXXXXxxxx, believe the above Witness Statement to be true and factual, Date ……………………………………

Use your advantage, to forgive the costs, you insist they 'make good your credit file'. If they wont play ball tell them you want costs, (If your credit is stuffed anyway, bill them) unless you get in writing 'account no XXXX now closed/settled in full, bill them, at least your have some fighting funds should they be as vindictive and devious as ....... well, all of them. Congrats and keep up the drinking

I'm right chuffed for you

Hi all Here's a newish one I have already established my DN is not valid,(about 300 posts ago, such is the popularity of this thread). Short story.. secured loan, house repo, shortfall, being hounded. OC recieved substantial funds from house sale, after faulty DN and faulty termination occured. Can I use section 106 to claim this amount as damages? Maybe even section 69 county courts act?

Perhaps DD can confirm this

Forgive my lack of knowledge..... I am in the same boat 4 commissions paid without my knowledge, until I recieved SAR back. I have used all the case law as above in my defence, but I keep looking at S55 55. Disclosure of information. — (1) Regulations may require specified information to be disclosed in the prescribed manner to the debtor or hirer before a regulated agreement is made. (2) A regulated agreement is not properly executed unless regulations under subsection (1) were complied with before the making of the agreement. I have posed the above question before..... Is it relevant to Secret Commissions? What are the 'regulations'? Sorry for butting in.