Natwest/Shakespeare claimform £29K - merged OD & loan - help!!

[citizenB]

It looks pretty good to me, however I have alerted the site team to have a look for you as well.

[42man]

It looks fine. But just backtracking Grad...the default notice is VITAL too...you might find this useful...

 

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

 

1. 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.

 

2. 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

 

3. Further to point 2 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.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. 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.

 

7. 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).

 

8. 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

 

© 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.

 

9. 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…

 

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

 

11. 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.

 

12. 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.

 

13. 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.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

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

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. 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.

[supasnooper]

You may also wish to add this that s69 interest should not be addedd to debts regulated under Consumer Credit Act 1974 -

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12))

 

The general rule

2. — (1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

(2) In the case of a judgment or order for the payment of a judgment debt, other than costs, the amount of which has to be determined at a later date, the judgment debt shall carry interest from that later date.

(3) Interest shall not be payable under this Order where the relevant judgment— (a)

is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

 

 

 

Just one other thought. Is the loan just in your name? If it is and the house is in joint names the other parties can also object, stating why they would be prejudiced by any charging order or order for sale. Arguments such as they put all of the deposit down, you are separating, they pay all of the mortgage may all help.

 

It is also worth noting that if it is a sole debt on a joint mortgage they can only enter a restriction, not a charge. You would see this on the detail from Land Registry where it says something like 'notice of intention to enter a restriction'. This makes the possibility of an Order for Sale VERY unlikely and means that (and not a lot of people know this!!) that you do not even have to pay them from the proceeds of the sale of you home, only notify them that the sale has taken place. Ultimately this is to protect those in situations where the other people on the deeds may be other friends, family or companies such as a Housing Association. In these cases your debt has nothing to do with them and they should not be caused detriment as a result of action taken against you.

The paragraph below is from a senior Land Registry official.

Quote:

Restriction

 

The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).

You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

 

If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.

 

Orders for sale of the property

 

The case of Midland Bank plc v Pike and another [1988] 2 All ER 434 is authority for the proposition that a person entitled to a charging order on the share of a co-owner was entitled to apply for an order for the sale of the land pursuant to section 30 of the Law of Property Act 1925.

 

Section 30 of the Law of Property Act 1925 was repealed by the Trusts of Land and Appointment of Trustees Act 1996. Sections 14 and 15 of that Act now cover the situation where an order for sale is applied for. The case of Mortgage Corporation v Shaire and others2001 4 All ER 364 discusses the factors to be considered by the court in deciding whether to grant such an order when application is made by a person who has a charge against the interest of one of joint owners.

SO I hope this gives you some comfort especially if the debt is in sole names, with a joint mortgage.

 

[Grad98]

Hi guys - this gives me much comfort. The home is in my name only but I shall go armed with this information to court.

Am working to modify my document to include the information re interest and default notice. Thanks so much for your help.

[Grad98]

Just to give you an update following my court apperance.

 

In terms of judgement, the #24000 was passed against me. Even though I pointed out lack of a default notice, because I had given a part admission (as they produced a valid CCA), the judge said it was not really relevant since I had admitted the debt. The balance was stayed until the result of the OFT test case.

 

In terms of interest the claimant wanted 8%, I argued the BoE rate has fallen to 0/5% so this was unfair. The judge ruled 4%

 

In terms of costs, the Claimant had #3603 costs, I argued about their time wasting tactics, the fact that under CPR18 i had requested docs and agreements in April 08, the claimant did not provide them till December 08. The judge awarded them #500 costs.

 

In terms of permission to apply for charging order, the judge did not grant this as he said he Claimant knows they have various steps to follow if thy wish to apply for a charging order so he would not deal with it at this time.

 

So thats it - thanks for your help everyone. I think we fought this to the best ability thanks to CAG. Does anyone have any suggestions of what happens next. I was thinking perhaps I could pre empt Natwest and apply for an installment order before they apply for charging order. What do you think? The only problem, under an installment order, the payments are likely to be quite small based on the amount they have been receiving pro-rata under my debt management plan (around #25). Does offering a small amount mean the judge is more likely to award a charging order should they apply for one?

[supasnooper]

Hi there,

 

Sory to read your tale but it reads that you stood your corner as to cost and the interest.

 

You'll need to get an installment application in ASAP -

 

 

Your name

Your address

Your Postcode

Date

The Court Manager

 

CLAIM NUMBER: ******

 

To the Court Manager:

 

Redetermination under CPR 14.13

 

I apply for this matter to be reconsidered (Redetermination under Rule 14.13 of the Civil Procedures Rules) Under rule 14.13 there is no court fee to make this application.

 

I am unable to pay the full Judgment forthwith/instalment as ordered on (insert date) and submit that this has been set an unrealistic amount (to pay in one instalment).

 

I request the Court reconsiders the Judgment. To assist I enclose an up to date financial statement and list of other unsecured debts.

 

As you can see my budget shows I have £..... surplus / £.... deficit after essential living costs and also have (insert number of creditors in total). Given my circumstances and considering my finances as a whole I am able to offer £.... monthly instalments and request the Court set the Judgment

at this amount.

 

Under rule 14.13 of the CPR I am entitled to have this redetermination and if necessary transferred to my local County Court. My application is also compliant with the time limit as it falls within the 14 days from the original order.

 

 

I look forward to hearing from you.

 

 

Yours faithfully,

Your Name

Edit to suit your case, Sign the letter, and enclose an income\expenditure sheet (available here http://www.consumeractiongroup.c o.uk...8&d=1226233492 )

[citizenB]

Sorry to hear this Grad, but it does look as though you won even partially on points regarding their costs.

 

Do you think they will apply for the charging order then ?

[Grad98]

Hiya

 

Yes I think they will. Their legal representative specifically tried to push it with the judge several times until she was actually warned by the judge that they know that there is a procedure they have to follow for a charging order after judgement has been passed - not before. It is however a consolation that costs and interest were reduced.

 

Thanks for all your advice and help. I will prepare the above installment letter in the next couple of days and keep you posted.

[supasnooper]

Make sure you get that letter in.

 

i would also advise writing to the creditor asking for details of how payments can be made and send a £1.00 postal order or a £1.00 third party cheque as a token payment until they provide the bank details for payment.

 

At least this will be evidence to a judge you are trying to be proactive in dealing with the situation.

[Grad98]

Just a quick question. Do I need to send a copy of the request for redetermination (offer letter being sent to the court) also to the Claimant?

 

Also should I wait for formal judgement to come through in writing from the courts before I send off the offer letter? I have it prepared but have not sent it off yet as I have not received my CCJ as it were on paper.

 

Thanks

 

Grad

[supasnooper]

No you don't have to send a copy to the claimant.

 

The letter is a request to the Court not to the solicitors.

 

 

If the CPR 14.13 request is granted by the Court the they will issue the neccessary instructions.

[Grad98]

Thanks

[The GodMother]

The courts will also issue a copy to the solicatoras aswell.