Morgan Stanley/Goldfish Cabot are now chasing advice please

trumpetmaest · September 22, 2009

Thanks for your help so far.

I have printed out my CPR 31.14 request and will post it off tomorrow. I shall then rint and post out the CPR18.

One thing about the PoC though.

Cabot have quoted the credit card account no and the loan account as there own internal cabot references and not the actual ones. does this make a difference?

Rhia · September 24, 2009

Just subbing. Have to say I am not entirely A1 with attacking two claims in one but so far you have got sound advice. Use the Part 18 to get answers to anything you want including the one in your last post about the reference numbers. Ask them to clarify this.

I would also say I would go along with pt's defence - the embarrassed defence. Unfortunately Cabot has just posted some serious financial losses. I say unfortunately as it seems to have made them even more agressive and are now trying it on via the courts with the flimsiest of cases.

They hope you will give in and pay up. In your defence papers I would also state that you believe their actions in using the courts to pursue a case without properly executed and legible agreements is vexatious, harrassing and an abuse of the court process.

trumpetmaest · September 24, 2009

I sent both letters yesterday one 1st class & the other 2nd class. All were sent to be signed for.

Can someone tell me how long I now have to submit my defence?

many thanks

lilly white · September 24, 2009

https://www.moneyclaim.gov.uk/csmco2/frontendcontroler?eForms_action=next_LoginCommand

have a read

i am trying to get up to speed on this

trumpetmaest · September 24, 2009

Doe that mean that I have 14 days after service of N1? Plus 5 day to arrive?

N1 is dated 15th Sept that takes it to 4th October.

Do I get extra time to submit a defence and allow cabrot to respond to my cpr requests ?

:confused:

Rhia · September 24, 2009

Now I think that you have 14 days to respond to N1 and more time after that to submit a defence. Which is a pretty rubbish reply.

Call the local court where it came from and ask them. They are always helpful and you can get this from the horse's mouth.

trumpetmaest · September 28, 2009

As I now read it because I have acknowledged service using their n9cpc in money claim I have 28 days from the date of service to file my defence.

trumpetmaest · September 28, 2009

I have checked the royal mail signed for and both of my cpr requests were delivered and signed for by morgans one on the 24th and the other the 25th.

That gives them until the 8th to default. Assuming that they default, is there a specific way that I inform the court or do I just mention this in my defence?

I have proof of postage and now the screen shots verifying delivery. :confused:

ScabHunter · September 28, 2009

It should be 28 days plus another three I think for delivery. It is probably best to check with the court so you know exactly where you stand.

Once Crapbot default on your CPR requests there will be no further reason to delay submitting your defence, so it is best to work on this with the 8th in mind.

You have done everything right so far. The first step will be to submit the defence, and as part of that you will need to include the proofs you have obtained that you did indeed make the necessary CPR requests.

There will be no need to involve the court at this stage. There will be a possibility of making an application later on.

When I've finished my dinner I'll have a good read through this thread and take some notes so I know where we are. Let me know if you want me to post some links to defences which will be similar to the one you will need to submit.

SH

ScabHunter · September 28, 2009

Trumpetmaest,

Did you ever receive a default notice on either of these accounts?

Did you receive a Notice of Assignment from the original creditor on either of these accounts?

Do you know if there were penalty charges applied to either account, and, if so, how many?

Do you know if any PPI was applied to the credit card account? (I am assuming that none was added to the loan as it says not on the agreement)

SH

trumpetmaest · September 30, 2009

Trumpetmaest,

Did you ever receive a default notice on either of these accounts?

Did you receive a Notice of Assignment from the original creditor on either of these accounts?

Do you know if there were penalty charges applied to either account, and, if so, how many?

Do you know if any PPI was applied to the credit card account? (I am assuming that none was added to the loan as it says not on the agreement)

SH

I never received notice assignments from the original creditors .

The only default notices that I have had have been from cabrot even though I have never acknowledged any debt to them.

I am not sure about ppi but penalty charges were added to both accounts.

ScabHunter · September 30, 2009

I never received notice assignments from the original creditors .

That is the usual case with Crapbot. They should be put to strict proof that Notices of Assignment were received.

The only default notices that I have had have been from cabrot even though I have never acknowledged any debt to them.

If the original creditors have terminated accounts without issuing default notices they have been silly. Put Crapbot to strict proof that compliant default notices were issued.

I am not sure about ppi but penalty charges were added to both accounts.

These will need to be mentioned because they could make the sum on any default notice inaccurate by a significant margin.

How are you getting on preparing the defence? If you need any help, just post here.

SH

stebiz · September 30, 2009

As somebody who has just won an appeal ,against a Judgement in favour of Cabot, can I please state the importance that 'if applicable' you defend on at least 2 accounts. (i) An agreement not being legible (ii) The T&C's not being embodied.

Stebiz

Rhia · October 1, 2009

I have seen Cabot letters on here where they try to argue that embody means something completely different i.e. embodied in a completely separate set of T&Cs. Professor Goode has scotched this one and there is a court case which took place this summer and posted on here which also nailed this particular myth. This is complete nonsense and needs to be argued.

If the agreement is illegible it is completely game over. It says quite clearly in the CCA itself and the regulations that it has to be completely legible to I think "anyone with average eyesight" in other words with specs is acceptable.

ScabHunter · October 1, 2009

Thanks for that Rhia, that is crucially important.

Do you have a link to either the case from the summer or to any quotes from Goode which will help?

SH

Rhia · October 1, 2009

This is the entire Judgement and it includes some important quotes from Prof Goode. It is quite long but worthwhile reading as it includes the points raised with this Cabot case. Of course it is not precedent but can be included as a strong case history.

If I can dig up anything else I will add it to the thread. BTW Bank of Scotland pulled out on the morning of the hearing because they knew it was a turkey but assume they thought Mr Mitchell would blink first. As the Judge comments they are playinga high risk strategy bringing such cases.

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

trumpetmaest · October 8, 2009

Ok. I have an initial defence. Thanks to Cymruambyth. I would b e grateful of input.

In the Northampton County Court

Claim number xxxxxxxxx

Between

Cabot Financial UK Ltd - Claimant

and

xxxxxxxxxxxxxxxx- Defendant

Defence

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot Financial Ltd

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimant’s Particulars of Claim and put the claimant to strict proof thereof.

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

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

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

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

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

d) It is denied that any notice of assignments were served by either the claimant or the original creditors and I put the claimant to strict proof thereof.

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing any Notice of Assignments in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deeds of assignment of the debts. In addition the defendant requires proof of service of the Notices of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears these are assigned debts. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignments they may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

The relevant Act of Parliament in this Case

6. Firstly 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 agreements 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.

7. 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)

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.

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon these agreements and the Consumer Credit Act 1974 is the act which these agreements are regulated by.

The Request for Disclosure

11. Further to the case, on 23rd September 2009 I requested the disclosure of information pursuant to the CPR 31.14 and CPR18 (letters attached marked Exhibit A), these were sent by recorded delivery and proof of delivery has been obtained. The requests for information pursuant to the CPR 31.14 and CPR18 are vital to this case.

12. The claimant has not replied or responded to either requests to the above disclosure requests.

13. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to assess if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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.

14. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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.

15. It is submitted that if a 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 then the court is precluded from enforcing the said agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document

16. 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."

17. 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

18. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

19. The claimant is therefore put to strict proof that such a compliant document exists.

20. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

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;"

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

21. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

22. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

23. Further to point 22 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.

24. 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.

25. 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).

26. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

27. 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…

28. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De minimus issue.

29. 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.

30. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

31. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

32. There is no provision in the Act relating to agreements Regulated by the Consumer Credit Act 1974 that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

33. 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. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.)

The claiming of interest

34. Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to personal credit agreements which are credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to the County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

Conclusion

35. The Claimant has failed to produce any copies of credit agreements in the requisite timescale/at all, and in the absence of such agreements, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreements have ever existed for there to have been any failure to make said payment.

36. Without Disclosure of the relevant documentations I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreements are properly executed, contain the required prescribed terms, or correct figures to make any such agreements enforceable by virtue of s127 Consumer Credit Act 1974.

37. The claimant has failed to issue valid Default Notices as required under s. 87 Consumer Credit Act 1974 thus making any termination of the agreements unlawful.

38. The claimant is laying claim to interest for which they have no valid legal claim.

39. The Claimants have not established any legal right to issue a claim or proven that any debts exist. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons

40. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

Statement of Truth

I, believe the above statement to be true and factual

Signed .....................xxxx xxxxxxxxxxx

ScabHunter · October 8, 2009

At first sight that looks an excellent base on which to build your defence. It is late now so I'll give it a more detailed look tomorrow.

SH

andrew1 · October 9, 2009

Defence

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot Financial Ltd should read: Cabot Financial UK Limited.

My only suggestion is that you understand what this means yourself if prepared by someone else. One word of warning to anyone looking at this:

This is obviously prepared for Trumpetmaest, if you cut and paste anything for your own use make sure you understand each and every sentence and how it applied to your own case. Cymruambyth must have worked very hard on this, but it's tailored to individual circumstances.

I do not profess to understanding it myself in part and can only pick up on things like this...

7. 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) The word 'Except' looks out of place? - it may be legal jargon, but I found a few like that in the earlier part of the document I might question.

I applaud the effort put in by Cymruambyth - well done.

Just check every word and phrase, if it doesn't sound right it probably isn't. The devils in the detail.

fermi · October 9, 2009

The word 'Except' looks out of place?

They probably mean 'Excerpt'.

Easily done. (Especially if you are using a spell checker and don't look hard enough at the suggested corrections. :oops: )

andrew1 · October 10, 2009

They probably mean 'Excerpt'.

Easily done. (Especially if you are using a spell checker and don't look hard enough at the suggested corrections. )

I respect that and I know what some of these words were meant to mean, but you can't go into court saying to the Judge " Oh, I actually meant this" he or she has to read it, understand it, know what it means and what it refers to, not sit there trying to decipher it. I might sound a pedantic ole sod but I see so many spelling and grammatical errors on documents people post up it makes me blood curdle it do.

All I'm saying is check it and get others to check it if your grammar ain't wot it could be - no one's criticising. Most of all the person who is submitting it must understand it, so much 'stuff' on here gets cut and pasted so if I spot these things I point them out and I'm sure nobody minds that - I'm judging no one.

trumpetmaest · October 10, 2009

thanks Andrew. I will re-read and then re post. I just want to get it right & I take your points onboard.

trumpetmaest · October 11, 2009

Right

it is IMHO missing the following points

1. no Total Charge for Credit

2. No Total Amount Payable

3 APR is incorrect and is infact 8.5%

4 Rate of interest is incorrect and should be 8.21%

so while this is not a prescribed term that is misstated, you have been denied the statutory protections that the CCA 1974 was designed to offer

pt please can you tell me where this information is ordering these to be included. I have a thread in legal at the moment.

trumpetmaest · October 11, 2009

I have been working through it and editing/tidying:

In the Northampton County Court

Claim number xxxxxxxxx

Between

Cabot Financial UK Ltd - Claimant

and

xxxxxxxxxxxxxxxx- Defendant

Defence

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot Financial UK Ltd

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimant’s Particulars of Claim and put the claimant to strict proof thereof.

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

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

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to, or proceeding the alleged cause of action.

No particulars are offered in relation to:

(i)the nature of the written agreements referred to

(ii) the method the claimant calculated any outstanding sums due

(iii) any default notices issued

or

(iv) any other matters necessary to substantiate the claimant's claim.

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

c) Copies of any evidence of both the scope and nature of any default, and proof of any amounts outstanding on the alleged accounts, have not been served attached to the claim form.

d) It is denied that any notices of assignments were served by either the claimant or the original creditors and I put the claimant to strict proof thereof.

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing notice of Assignments in respect of that which is denied. Case Law: W.F.Harrison and Co Ltd v Burke [1956].

5. The defendant requires sight of the deeds of assignment of the debts.

In addition the defendant requires proof of service of the Notices of Assignment in accordance with s196 of the Law of Property Act 1925, which is required to give the claimant a legitimate right of action in their own name since it appears these are assigned debts.

The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents . The defendant notes that if there are errors in the assignments they may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169.

6. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

The relevant Act of Parliament in this Case

7. Firstly 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 agreements 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.

8. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Excerpt taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database)

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

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

9. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon these agreements and the Consumer Credit Act 1974 is the act which these agreements are regulated by.

The Request for Disclosure

10. Further to the case, on 23rd September 2009 I requested from the claimant, the disclosure of information pursuant to the CPR 31.14 and CPR18 (letters attached marked Exhibit A), these were sent by recorded delivery and proof of delivery has been obtained. The requests for information pursuant to the CPR 31.14 and CPR18 are vital to this case.

11. The claimant has not replied or responded to either request made relating to the above disclosure requests.

12. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules it is impossible to assess if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

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.

13. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3).

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.

14. It is submitted that if a 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 then the court is precluded from enforcing the said agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document .

15. 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:

"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."

16. 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 unenforceable.

17. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.

18. The claimant is therefore put to strict proof that such a compliant document exists.

19. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

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;"

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

20. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

21. 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."

Practice Direction