Nationwide/dryden claimform - credit card debt **DISCONTINUED**

[1stlifeline]

No use saying thanks then --- if your not there:D

[gh2008]

Just looking at the Default Notice

 

As the 'agreement' does not contain a term describing repayments and how they are to be made - this would make the Default Notice invalid as it describes the breach as breaking the repayments term.

 

That's all I can find wrong with it

 

Is the period still 7 days from service? in which case their 14 from date of notice would be ok wouldn't it

[1stlifeline]

Sorry but I dont understand the last post GH, what do youmean about the number of days?

[gh2008]

Sorry, wasn't aimed at you, just thinking aloud/ideas for the defence re the Default Notice.

[1stlifeline]

Oh good, Im not as thick as I thought then;)

[gh2008]

Is the period still 7 days from service? in which case their 14 from date of notice would be ok wouldn't it

 

Found it and it's 14 clear days from service which is taken to be 2 days by 1st class post

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

So that totally invalidates the Default Notice

 

I know you need to get your Defence printed out tonight so you can 'Special Delivery' it tomorrow.

 

Hopefully Paul will be about this evening, but if not I have a couple of his recent defences that are against a similar POC and also a similar situation. These can be amended to suit, so don't worry

[pt2537]

well, theres no hopefully about it, im about

[1stlifeline]

Thank you GH, but I still dont know what you mean about the default notice?????

Thank you for the other reason to (you know what I mean;) )

 

Also thank you Paul, I know you are up to your eyes in it and its good of you to help me, thanks so much.

[gh2008]

Thank you GH, but I still dont know what you mean about the default notice?????

Thank you for the other reason to (you know what I mean;) )

 

Also thank you Paul, I know you are up to your eyes in it and its good of you to help me, thanks so much.

 

AFAIK and I might be wrong someone correct me if I am please -

a creditor wanting to close an account or demand payment etc because of a breach by the debtor, cannot do those things until they have served on the debtor a Default Notice.

 

Now, in the same way the agreement is heavily regulated a Default Notice is also regulated by the CCA. If a Default notice fails to comply with the regs it is deemed not to exist.

 

If the Default Notice does not exist then the creditor cannot demand early repayment close the account etc. or to then issue a claim to enforce this action

 

I expect this will form part of your defence, it's another angle to attack them from.

[1stlifeline]

But thats what I dont understand, they did send a default notice?

[gh2008]

Yes, but according to the regulations it should have given you 14 clear days from service to comply. Service is taken as 2 days when posted 1st class.

 

Their notice gave you 14 days from issue. So that's at least 2 days less than the law states. Therefore the notice is invalid therefore it can be deemed not to exist.

 

In the same vein, they've sent you what they say is an agreement.

Is it a properly executed enforceable agreement - no it is not - it is irredeemably unenforceable and therefore again it is as though it doesn't exist.

In reality an agreement doesn't exist an application form does but a valid agreement doesn't.

 

 

It is good that you are thinking about what is being said as you will need to know why your defence says the things it does. It is no good going into court with a piece of paper you don't understand. you will be stating that the defence is yours and you must understand it and believe in it.

 

Sorry if that last bit sounds stupid but IMHO it's true

[1stlifeline]

But the default notice was sent on 20th April 2007?

 

I know by now you feel like you are banging your head against the wall but I am going to get my head fully round this in time for the court hearing (even if it dosnt appear like that now!)

 

EUREKA!!!!!!!!!!!!!!!!!!!!!! Got it. Took a while but I see what youare saying now. (thank God for that he said!)

[pt2537]

the default notice is not also in the required form as per the regulations as the defence i am going to post in around 20 minutes will enlighten you all on

[gh2008]

Sorry I have not made myself clear.

 

ok, have another look at the notice http://i262.photobucket.com/albums/ii82/1stlifeline/Nationwide/DefaultNotice20-04-07.jpg

 

Now where is says "Date by which action is required"

That date should give you 14 days from receipt (+1 day if 1st class delivered next day) not 14 days from writing.

20th April '07 was in fact a Friday so service would be the Tuesday (I think) so, in fact they're more than 2 days out.

 

the default notice is not also in the required form as per the regulations as the defence i am going to post in around 20 minutes will enlighten you all on

 

Now I am intrigued as I couldn't find anything wrong with the form

 

So I've got another 20 mins to pore over that wonderful SI :grin:

[1stlifeline]

Thanks GH, I know exactly what you mean about the default notice now.

[gh2008]

I was wondering earlier whether it is the lack of specifying either c or d from below

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- 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 claimant's particulars of claim as very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16 in particular the claimants statement of case does not conform to CPR 16.4. No particulars are offered as to how the amount claimed is calculated nor is there a copy of the default notice referred to within the particulars of claim and most importantly, where the claimant is bringing this claim which is founded upon a written contract, namely a credit agreement they should serve a copy of that agreement with the particulars of claim

 

3. Consequently where the claimant has failed to provide the written documents that they rely upon, I am unable to admit or deny their claims and accordingly I put them to strict proof thereof.

 

4. Upon receipt of the claim form I wrote to the claimants requesting disclosure of documents that form the basis of their claim.the claimant replied stating XXXXXXXXXXXXXXXXXXXXXXXXXXXXX A copy of the letters are attached marked 1st lifeline 1 2 &3

 

5. This response failed to assist me as a litigant in person with limited legal knowledge to prepare my defence to this claim and has left me at an extreme disadvantage as a result

 

6. Prior to the start of this litigation, I made a statutory request upon the claimant delivered via recorded delivery pursuant to section 78(1) of the consumer Credit Act 1974.

 

7. On xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit 1stlifeline 4 & 5

 

8. For clarity, section 78(1) of the Consumer Credit Act 1974 states

 

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £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 state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

9. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

10. In response to the request made on xx/xx/2007 the claimant supplied a document annexed to this defence marked 1st lifeline 6, which it claimed to be the credit agreement. It was a single sheet of paper and the claimant has confirmed in writing that this document is indeed the credit agreement which it is reliant upon. I note that section 172 of the consumer credit act sets out that

 

172.

 

Statements by creditor or owner to be binding.

- (1) A statement by a creditor or owner is binding on him if given under-section 77(1),

section 78(1),

section 79(1),

section 97(1),

section 107(1)©,

section 108(1)©, or

section 109(1)©,

 

11. It is submitted that the claimants statement that the document supplied in response to the section 78(1) request made on xx/xx/2007 is binding upon them in these proceedings and that the single page document they provided is the credit agreement.it is further submitted that by only supplying a single sheet of paper the claimant has failed to discharge its obligations under section 78(1) and is not allowed to bring this claim by virtue of the statutory restriction placed upon them per section 78(6) as laid out in point 9.

 

 

12. Notwithstanding the above, the credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

17. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

18. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

19. Notwithstanding point 11, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

20. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

21. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

22. With regards to the Authority cited in point 14, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

 

23. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

24. In addition to the requirements of schedule 6 of SI1983/1553 these terms must be within the agreement itself, not in a separate document. I refer to the judgement of Tuckey LJ from Wilson and Hurstanger in point 10 above, from reading the document submitted as the "agreement" I cannot see any prescribed terms within the document and since they cannot be contained within another document as laid out by Tucky LJ then I cannot see any other conclusion other than the agreement rendered unenforceable

 

25. Therefore it is submitted that this document falls foul of the Consumer Credit Act 1974 as previously outlined in points 5 through to 13 and as a result Section 127(3) prevents this document from being enforced

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

27. I also make reference to Sir Andrew Morritt V-C's judgment in the Court of Appeal ruling in the case of Wilson v First County Trust Ltd - [2001] EWCA Civ 633, [2001] 3 All ER 229 at para 26

 

In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor, which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid

 

 

this statement is extremely important as are the various other judicial statements referred to within this defence, the higher courts have repeatedly held that where credit agreement fall foul of the Consumer Credit Act 1974 and subsequent regulations, the creditor will lose any monies under the agreement and further more that the defendant is not unjustly enriched as a result. It was the will of parliament that creditors who fail to comply with the statutory duty laid down in S60,61 and regulations then they cannot seek enforcement thought the courts and further more such enforcement will not be granted even if it appears prima facie just to grant such enforcement

 

 

28. If the claimant is in disagreement, then it is respectfully requested that the claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553. Should the claimant be unable to produce the original agreement or a copy of, signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit 1st lifeline xx ) unenforceable.

 

 

29. In addition to the credit agreement being irredeemably flawed, it is submitted that the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) See attached exhibit 1st lifeline xx

 

30. I refer to the date of the letter as being the XXXXXXX 2007; it is denied that the Default notice was received on the XXXXXXX 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

31. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

32. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

33. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

34. The notice fails to include the following statement in the form as shown

 

"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

 

35. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

36. The statements referred to in points 26 & 27 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

37. 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) CCA 1974 which states

 

(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.

 

38. I note the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

39. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

40. 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 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 default

 

 

41. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

To sum up this case,

 

42. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

 

 

43. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

44. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

45. I respectfully request permission from the court to allow me to amend this defence in light of any new items disclosed to me by the claimant

 

46. I respectfully request that as per point 28 , the court make an order pursuant to section 142(1) Consumer Credit Act 1974 that the credit agreement is unenforceable and that it be rendered void as laid out in this defence accordingly

 

 

47. Finally I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

48. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008)

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

49. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

 

 

thats the first draft

[1stlifeline]

'nor is there a copy of the default notice referred to within the particulars of claim'

 

Thanks so much Paul. Can you just clarify that bit though as it does state in the POCs that The Defendant was served with Notice under Section 87'

 

am I mis understanding that bit?

[pt2537]

what that is saying is that while you recieved a default notice, they should have attached a copy to the claim form. the defence sets out the one they sent you was complete ball hooks so they should have served a coipy with the claim

 

also you need to go through and enter your own bits where they are blanked out etc and also where i have refered to exhibits or documents attached to the claim form as 1st lifeline you need to amend that to your own initials

[1stlifeline]

Im also confused by point 34 and 35 as the Default notice does have that written on? Can you clarify please Paul.

[pt2537]

ah yes it does, but the devil is in the detail

 

it does have XXXXXXXX but it doesnt have XXXXXXXXXXXXXX

[pt2537]

there is a statutory requirement that a default notice as per the regulations, if you read the defence you will see what i mean, that the form and detail must be reproduced verbatim for a default to be valid. the regulations allow no variations so if its showing bold and underlined in the regs then it must be the same in the notice

 

quite simply, it adds to your arguement

[1stlifeline]

Well, its obvious to me now why you do what you do and I work in a shop! Im working my way through the defence, I must say its a lot more in depth than I was expecting. I cant thank you enough for the trouble you have gone to.

[pt2537]

well if they decide to continue then let me know and i will send you all the case law, statutes and other stuff you need to have a real good go at them

 

obviously i make no guarantees of success but i feel that you have a real strong case and that you have a good prospect of success

[gh2008]

thats the first draft

 

Superb defence as always It gets better & better

I like paras 10 & 27 they're new aren't they?

 

BTW could you email me a proper copy of SI 1983 1561 my copy (from the library on CAG) hasn't got the underlining either!!