Ok, the judge ruled that they HAD NOT COMPLIED with my S.77 request and as such stayed the claim as until they comply with my S.77 request the agreement is unenforceable.

The FCA say:
Guidance on the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974”, in particular I should like to look at   Part 13.1.6 “Failure to Comply” which states:

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.


Therefore, as per the above, the agreement is unenforceable.  

I disagree. I think that they are misleading me in by not stating that the agreement is currently unenforceable.  I'm going to make the complaint. I don't see it can damage my position.

Ok, let's look at it another way.  What have I got to lose by making a complaint to the FCA about this?

It's not that I'm getting upset about it, I'm just wondering if I can use it against Erudio/Arrow Global so as to make any alleged debts completely unenforceable forever. 

At the moment the case is just stayed, if Erudio did miraculously find the stuff to conform with my S.77 request then I'll have to go to court all over again, and I'm not sure that I can face that - it's been a really big strain on me for the last 3 years.  If I can find some magic bullet that will blow this away completely then that would be perfect.

Quote

Also, "they are registered under the parent company 

they purchased the debt and everything that goes with it under a deed of assignment with the Original Creditor and sent a notice of assignment. that makes them the  owner ...the Creditor"

Who are you talking about here? Arrow or Erudio?

But surely by sending these they are breaking the FCA guidelines, as I quoted? 

Also, what about the point that I've made about non-registered firms trying to enforce debts? I thought that was illegal?

I'd contend that simply by sending the NOSIA they are breaching FCA rules, and certainly by purporting to be registered when they aren't they MUST be breaking these guidelines.  Surely there must be some penalty or sanction for this?

Hi folks, 

Today I received to NOSIA letters regarding my accounts, they also came with FCA information leaflets.

Now, if we look at the guidance given by The Financial Conduct Authority in its Consumer Credit Source Book, in particular at Chapter 13, “Guidance on the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974”, in particular I should like to look at   Part 13.1.6 “Failure to Comply” which states:

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any request for payment or communication relating to a payment (other than a statement issued in accordance with the CCA or regulations made under it which does not constitute or contain a request for payment) in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.


Given that the judge ruled that this was stayed until Erudio fulfill their obligations under S.77 of the CCA and Erudio have not sent me anything other than these two NOSIA letters, can (and should) I put in a complaint to the FCA about them breaching the above guidance?

Also, at the bottom of these letters, it states that "Your account is administered by Arrow Global Ltd...Arrow Global Group is authorised and regulated...by the Financial Services register under registration number 718954.  - Except, if you look up that number on the Financial Services register Arrow Global are no longer authorised by the FCA.  

The question is, could I (and should I) put in a complaint to the FCA and will it effectively make any alleged debt completely unenforceable in perpetuity? Isn't it illegal to attempt for companies to attempt to enforce debts if they aren't registered by the FCA?
 

Question. Regarding the costs awarded. Can I dictate how they pay these, for example, by cheque?

I do not want to give out my bank details to them and I know they are going to say that they only pay by bank transfer.

You need to post the Default Notices and everything else.  Have you made a CCA1974 s.77 request to them yet? If so, have they replied to it?

Well, turns out they can!

I asked the judge if I could speak first as I said that I had serious concerns that they were going to present evidence that could prejudice the case against me and he refused this and said I'd have time to present my side of the case after the claimant had put theirs.

He asked the claimant's representative to put their case and then asked him various questions about different elements of it, notably the Notice of Assignment, the absence of a proper court bundle and then Erudio's response to my CCA s.77 request.  

The judge asked for proof that they had responded in full to my S.77 request and when they couldn't provide evidence that they had, he ruled that the case be stayed until such point as they fully comply with the S.77 request.

I did ask him to kick the case out due to the length of time that they've had to respond the s.77 request but he said that he felt that from the evidence that he'd read he thought that my defence on limitation was destined to fail and as such he would be depriving them of justice if he kicked it out. He refused to hear any more details of the arguments around limitation. I asked him to put a date where they had to comply with CCA74 by and he also refused to do this.

I asked for him to award costs in my favour, and he did so.  They now have to pay me £160 by 19th December.

I cannot believe this is still going to be hanging over me, so not a loss but also not a win.  It does feel like a loss as I truly believed this was going to be over one way or the other today.

So, looks like you don't get rid of me that easily!

This will probably be my last post before the hearing. Whatever the outcome I'd like to say a massive, massive thank you to all those who have helped me with this issue, all those who've posted advice, all those who've helped me with the wording of things, all those who've shown an interest.

In particular I'd like to thank Andyorch, Dx100uk who have been incredibly patient and supportive all the way through this process. An honourable mention for Bertman too, who directed me to what could be an invaluable tract in the Doyle v PRA Group case.

So, wish me luck, I am aiming to absolutely eviscerate them tomorrow, to win costs against them and to ensure that they can NEVER resurrect this claim again.

As I said, once the case is over I shall post all my witness statements and arguments so that I hope that others may be able to use them to defend any future claims that Erudio/Drydens make.

I go to court for the hearing tomorrow.

I'm pretty sure I've got a pretty compelling case.

My only question is

there is a case where the judge ruled that because a lender had not complied with a Section 77 Request under the CCA 1974, it was too late for them to comply with it after the hearing. 

Anyone got any idea which case/judge/date this was?

I will be posting up all my defence/witness statements etc after the case is concluded.

CONGRATULATIONS!  I've got my court hearing coming up very soon and so it is very, very heartening to see a case where Erudio have lost.

I'm going to PM you as I may wish to use, "It is particularly important and incumbent on the Claimant to provide a defendant with every opportunity to defer" in my case, for which I'd need the name of your case and your judge.

I'd be very careful about signing and returning the Tomlin Order until you've had further advice.

You may be better off just appealing to the judge to dismiss Erudio's claim as they have not complied with the Court Order in the time specified.

Can the claimant submit further evidence etc between now and the new hearing?

Or must everything stay as if the hearing was held on the original date?

I'm so upset about this, it seems so unfair and prejudicial against me.

Feeling absolutely devastated.  Just had an email from the court saying that they've not got any judges to hear the case on Monday and so it's being adjourned.

I feel absolutely crushed by this. It's not fair of the court to mess with my mental health like this.  What can I do?

Hi all, I think the last 3 posts should have been on Pellegrino's own thread here - 

Very annoyingly I have spotted two inconsistencies in my witness statement. Neither should prove fatal as I don't think that they are untrue, but I will re-submit by email tomorrow to both the court and the claimant.

In theXXXX County Court


Claim No. XXXX

BETWEEN: Claimant Erudio Student Loans Ltd AND Defendant XXXXX


WITNESS STATEMENT OFXXXXX

 I, Mr XXXX, being the Defendant in this case will state as follows; I make this Witness Statement in objection and to oppose the claimant application for Strike Out/Summary Judgment and any costs order being awarded against the defendant.

1. The Claimant’s Claim was issued on 9th January 2020

2. The Defendant contends that the claimant’s claim so issued is a claim in contract and is statute barred pursuant to the provisions of Section 5 of the Limitation Act 1980.

If, which is denied, the claimant contends that the defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the claimant.

3. The Claimant’s claim to be entitled to payment of £XXXX or any other sum, or relief of any kind is denied.
 

4. The defendant contends that there is not and never has been any contract or agreement between the claimant and the defendant.

5. The defendant contends that no Notice of Assignment was ever sent to the defendant. Pursuant to Section 136 of Law of Property 1925, a Notice of Assignment must be made in writing and signed under hand by the assignor, AND Notice of Assignment must be received by the other party or parties for the assignment to take effect.  As such, if any assignment was made between The Student Loans Company Limited and Erudio Student Loans Limited then any such assignment would be an equitable assignment, not a legal assignment. As such Erudio Student Loans Limited cannot bring an action against the defendant in its own name.

6. The defendant contends that had there been any contract between the Claimant and Defendant, which is denied, that the numerous breaches of any such contract would render any debt arising from such a contract as being unenforceable and/or irrecoverable.

7. The defendant contends that had there been any contract between the Claimant and Defendant, which is denied, that the numerous breaches of the Consumer Credit Act 1974 by the claimant would have invalidated any alleged contract and/or made any resultant debt irrecoverable.

8. I should like the court to look at the formal request made by myself to Erudio Student Loans Limited under Section 77 of the Consumer Credit Act 1974 dated 27th January 2020.  (B1). You will see that I request a true copy of the credit agreements relating to this case, and any other documentation that the act requires them to provide, within the statutory time limit.  Having received a letter dated 6th January 2020 from Erudio Student Loans Limited advising me that my account was now being managed by Dryden’s Fairfax Solicitors (B2)  I was unsure of whom this Section 77 CCA1974 Request should be made to I also sent a similar request to Drydens. (B3).

Erudio Student Loans Limited sent me a response on 18th February 2020. (B4) along with true copies of the 1st page of the 4 agreements (B5, B6, B7 and B8.)  Under the Consumer Credit Act 1974, section 77 it states that “The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the total sum paid under the agreement by the debtor;

(b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(c)the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.”

 

 As we can see from (B4) the claimant has NOT provided me with a) the total sum paid under the agreement by the debtor. Nor have they provided me with the various amounts comprised in that total sum, with the date when each became due. Furthermore, if we look at each of the 1st pages of the agreements that were sent (B5, B6, B7, B8) we can clearly see that under the address box they all state “on the terms and conditions of this Agreement as set out on this page and overleaf.”  As the response did not include any 2nd page to any of these agreements, under the Consumer Credit Act 1974 then they have also failed to comply with the act.  The sanction under the act for non-compliance is that the debt is unenforceable until the creditor complies. Where such a failure exists the courts have no discretion to allow enforcement. 

9. I should like to refer the court to  the guidance of the Office of Fair Trading,  in their document OFT1272 “Guidance on sections 77,78 and 79 of the Consumer Credit Act 1974”, and in particular Part 2, “The Duty to Give The Debtor or Hirer A Copy of The Agreement and Other Documents”.  It states in Part 2.5 “In any event, the OFT considers that it is an unfair business practice to seek to take advantage of any confusion, ignorance or difficulty on the part of the debtor as to whom he or she should send an information request where there has been a sale of the debt. The debtor has asked for information and if the recipient considers that another person is the creditor or owner, the recipient should either inform the debtor or hirer of who it considers is the correct recipient or pass the request on to that person for it to be dealt with by them. In that way the consumer can be assured that any request will be made or will have been made to someone who is prepared to accept responsibility for responding to it.” 

On 10th March 2021 Drydens Fairfax Solicitors wrote to me (B9), in this letter you can see that they say, “The last payment made towards the account was on 7th February 2020.” If we look at the Account Summary that they sent with this letter, (B10, B11) we can see that on 7th February 2020 they attributed the amounts of £0.30, £0.24, £0.20 and £0.26 to the account.  These amounts add up exactly to £1, the only possible explanation for this is that they have taken the £1 fee provided to them for the Section 77 request under the Consumer Credit Act 1974 and attributed it to the account.  You will see in the letter that they say “…invite you to now settle this matter without the need for further legal action.”  I should now ask you to look at the guidance given by The Financial Conduct Authority in its Consumer Credit Source Book, in particular at Chapter 13, “Guidance on the duty to give information under sections 77,78 and 79 of the Consumer Credit Act 1974”, in particular I should like to look at   Part 13.1.6 “Failure to Comply” which states:

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any request for payment or communication relating to a payment (other than a statement issued in accordance with the CCA or regulations made under it which does not constitute or contain a request for payment) in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

I believe that given that my request for information under Section 77 of the Consumer Credit Act was not complied with, that the claimant has made such a serious breach of the law and all guidance surrounding it that their claim should be denied and costs should be awarded against them.

10. The claimant has never sent any letters of deferment to me. Under the terms of the agreement with the Student Loans Company Ltd, there was, I believe, an obligation for them to send correspondence inviting me to defer my loans if I was eligible. The claimant has neither claimed, nor provided evidence of them inviting me to defer my loans.

11. The claimant has not detailed how or when any periods of deferment were in place during the period of the agreement.  Nor have they provided a full breakdown of how the amounts that they are claiming have been calculated.

 

12. My last agreement for a student loan has been outstanding for more than 25 years and as such under the terms agreed with The Student Loans Company Limited this would cancel any liability for the defendant to repay any such loan.

13. The Claimant has not complied with the order made by Deputy District Judge XXXX on XXXX 2023.

I should like to draw the attention of the court to the order made by Deputy Judge XXXX at the previous hearing on XXXX 2023 and in particular point 2 where it is stated, “The Claimant/Applicant is to file and serve a skeleton argument NO LATER than 14 days before the hearing.  Please see sheet (A1) where the details of the order are admitted by the claimant’s representatives.  I did not receive the skeleton argument by a proscribed method until 17th October 2023, and I provide a photograph of the bundle received where it can clearly be seen that the postage date on the letter is 16th October 2023. (See A2). Given that the claimant and their representatives have had from 14th April 2023 until 16th October 2023 to file and serve this skeleton argument I ask the court to take this non-compliance seriously and to make a decision on whether or not the claim should be struck out simply on this basis. I would ask that, at the very least, the court place no reliance on the information supplied nor the arguments put forward by the claimant in the skeleton argument and accompanying documents.


14. The Claimant has made untrue statements in their Skeleton argument and therefore their Statement of Truth is thus also inaccurate.

I regard a statement of truth as made in any documents submitted to a court to be of the highest importance, a point that is reinforced by the sanctions that can be applied if someone makes, or causes to make, a false statement as to the truth of the information submitted. We can see that such a Statement of Truth has been made by Leigh O’Neill in this document. (A3) If we look at Point 2 of the claimant’s skeleton argument you will see that is says “…the Originating Creditor issued the Defendant with a Default Notice on 24th May 2015. “ This raises a couple of points, as I understand it an Originating Creditor is the organisation with whom a contract is signed by the Creditor.  As we can see from (A4), the Notice of Default has been sent by Erudio Student Loans Limited, not from Student Loans Company Limited with whom I signed the loan agreements, thus they are not the Originating Creditor. Furthermore, the Notice of Default is dated 24th May 2016 and as such could not possibly have been issued a year earlier.

If we look further into the Skeleton Defence and still relating to the Statement of Truth, under point 6 it states, “On 22nd October 2022, the claimant wrote to the Defendant to advise that the Agreements were terminated…A copy of the termination notice letter is exhibited.”   If we look at the Termination Letter, (A5) we can clearly see this is dated 22nd June 2016.  I would suggest that this, once again, shows that the details within the Skeleton argument are therefore untrue and as such the Statement of Truth is inaccurate.  On this basis alone I believe the claimant’s claim for the stay to be lifted, for the Defence to be struck out, for summary judgement and for any costs order to be made against the defendant be denied.  Furthermore, I should request that the court makes a cost order against the Claimant in regard of my own expenses as detailed in my witness statement dated 19th October 2023.

15) In response to my assertion that this claim is Statute Barred the claimant is attempting to rely on BMW Financial Services v Hart

BMW Financial Services v Hart was a case that centred on a Hire Purchase Agreement between the two parties. A hire purchase agreement is a completely different type of contract to that which I entered into with the Student Loans Company Ltd and as such has no relevance to this case. In the Doyle v PRA Group case PRA had attempted to rely on the ruling given in BMW Financial Services v Hart. In point 29 of the judgement in Doyle v PRA Group, the presiding judge, Sir Thomas Etherton said about the attempt to rely on BMW Financial Services v Hart, “the facts, and in particular the terms of the contract, in that case were materially different from those in the present case. It is not necessary to place any reliance on it.”  Whilst I contend that the case in front of the court is fundamentally different from Doyle v PRA Group, it is clear that BMW Financial Services v Hart is even further divorced from this case, and so the court similarly should place no reliance on the ruling the case between BMW Financial Services v Hart.

16) In response to my assertion that this claim is Statute Barred the claimant is attempting to rely on Doyle v PRA Group.

This is absolutely not true. Doyle v PRA Group centred on a credit card agreement. A credit card agreement has a running date of settlement with no obligation to offer any deferment of payments. The contract that I entered into with the Student Loans Company Limited was completely different to this, there was no continuous line of credit offered and they came with a fixed term, a settlement date, the opportunity to defer payments defined by statutory instruments, namely The Education (Student Loans) Regulations for each of the appropriate years, and write off terms as defined in the aforesaid.  If we look again at the judgement made by Sir Thomas Etherton in the Doyle v PRA Group case as referenced by the claimant in point 29 he goes on to say, “…each case turns on it’s particular facts, and in particular the wording and proper interpretation of the agreement in question and any applicable statutory provisions.” I believe that credit card agreements are subject to the rules of The Consumer Credit (Running Account Credit Information) Regulations 1983 whereas, the agreement that I entered into with the Student Loans Company Ltd were subject to the rules of The Education (Student Loans) Regulations for each of the appropriate years, and which have very different rules. Can any reasonable person really equate a student loan as being the same as a credit card agreement? It is my belief that when Sir Thomas Etherton made his statement about “each case turning on it’s particular facts” that he was clearly making the point that his decision regarding Doyle v PRA Group should not be applied laissez-faire to other cases where the agreements were different to those in the Doyle v PRA Group case.  I believe that the agreement that I had with the Student Loans Company Limited in regard to these loans is substantially different to the agreement made between Doyle and the PRA Group and as such this court can place no reliance on the judgement given in that case. As such this court should refuse the claimant’s application for summary judgement.

17) I further put it to the court that it is not fair for a claimant to issue a default notice months or even years after the true cause of action thus choosing to rewrite the definition of statute barring under the statute of limitations act and potentially allowing them to run this date to infinity. I believe that the Limitations Act 1980 was made law in order to ensure that any individual would be protected from claims being issued long after any claim should have been made, if the claimant’s claim was to be allowed then any individual would have almost no protection from claims being issued at any point, a position that is clearly the opposite of the intention of the Limitation Act 1980.
 

18. The Claimant's claim to be entitled to payment of £XXXX or any other sum, or relief of any kind is denied.

19. I ask the court to make an order awarding costs against the claimant as described in the attached.

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.


Signed……………………..XXXXX

Date………………………..

 

I have since submitted an amended defence which has been accepted by the claimant. I shall also be sending a witness statement and supporting documents to the court and the claimant 7 days (or earlier) before the hearing date.

Yes, this is a continuation of the April hearing where their application was not dismissed but instead the judge ruled that it be adjourned so that they could allot a longer court time, and so that the Claimant could submit their skeleton argument in writing.

Given that they asked the court at the April hearing to disregard my witness statement as it wasn't served in time, I shall be doing the same and emphasising that they are supposed to be a professional firm of lawyers who have had since April to file and serve.  It won't be the main point of my defence though.

No.

Original court claim was made in January 2020. I issued a defence and they did nothing, so it was stayed.

They then applied to lift the stay, strike out the defence and for summary judgement in an N244 issued June 2022, I heard about it in January 2023 when I got the Notice of Hearing of Application.

That hearing was held in April 2023, however the judge decided that the matter was too complex to be heard in the 30 minutes allotted and so adjourned the hearing but also ordered that "

1. The Claimant/Applicant is to file and serve a skeleton argument no later than 14 days before the hearing"
    

The new hearing is 30th October.  I received the skeleton argument by post on 17th October.

So, is a document deemed filed and served on the date they posted it or the date it is received?

IE. If they posted it on the 16th, is that the date taken, or is the 17th (when I received it) the date taken?

Their N244 is uploaded on post #112 of this thread, way back on page 5.

This is the skeleton defence that the Judge ordered them to submit when we went to hearing in April.

Their application is to lift the stay, strike out the defence and for summary judgement.

For example.

The court order made in April said the Claimant "MUST" file and serve a skeleton defence at least 14 days before the hearing. 

Whilst they emailed me their skeleton defence yesterday, I have never said that I would accept email as a form of service.

Today the postman has just delivered their skeleton defence.

As the hearing is on the 30th October, which is now only 13 days away, surely they have failed to comply with the Court Order?

I'm self employed. 

Also, further to my earlier question. When do I need to post my witness statement so that it is deemed served and filed at least 7 days before hearing?

Great, thank you Andy.