Creation Consumer Finance claimform - old Fridge loan - struck out - they tried again - **WON+COSTS TWICE**

[popeye1]

Lets see what they send you and then post it up.

I fully understand your anger ,aim it at these uninformed judges on the CCA.We just got to keep reading and hope more legal informed helpers arrive.I believe at the moment it will get harder

[intree]

Hi been to court. they sent a local solicitor who said she did not have a clue, but we ignored her, then she wanted our defence struck out etc, it was not, however we pleaded our case and the fact that payments were being made, as they produced a Agreement from Open+direct not creation.

 

This was challenged by me and we stated we have not received a default notice from Creation or O+D, OR NOA.

 

This arrived this morning - any advise please from a legal helper:

 

Notice of Allocation to the Small Claims Track (Hearing)

 

Upon Hearing the solicitor for the claimant and the defendant in person

And upon allocatiing this matter to the small claims track.

 

IT IS ORDERED THAT:

 

The claimant has permission to amend it particulars of claim, if so advised, by filing and serving an ammended claim from by 4pm 9/3

 

The defendent has permissionj to file and serve an amended defence by 4pm 30/3

 

The Hearing of the claim will take place at xxx on May at xxxxxxx xxxxxx Court and should take no longer than 2 hours. A Hearing fee of £150 is payable by the claimant unless you make an application for a Fee concession, Failure to pay the fee will result in the hearing being removed from the list.

 

THE COURT MUST BE INFORMED IMMEDIATELY IF THE CASE IS SETTLED BY AGREEMENT BEFORE THE HEARING.

 

The Hearing fee will be refunded in full if the court receives notice in writing 7 days before the Hearing date, that the case is settled or discontinued.

 

Each party shall delivery to every other party and the court office if all documents (including any experts' report) on which he intends to rely at the hearing by 9/04.

 

The Original documents shall be brought to the court.

 

Witness statements shall be included in the documents served and filed. This includes evidence of the parties tehmselves, and any other person which evidence is to be relied upon, whether ort not it is intended to call them at the Hearing.

 

The parties should note that the Court may deceide not to take account of any document or witness statement if the document, statement or report does not comply with the above directions.

 

The Judge has approved the case to be listed back to back. Whilst thie system aloows us to give you an earlier date it does mean that your case might not be heard until the afternoon. Therefore please this in mind and keep the whole day free of other commitments.

 

The costs be in the case.

 

Date xx 2/09

 

please can anyone assist with this, I did ask for our costs at trial and the judge agreed if we win, for witness' attending and out of pocket expenses, but has then failed to mention this in detail as above.

 

Your kind assistance is appreciated as I was so annoyed on Monday when I attended the Preliminary Hearing and was unabel to get any help.....I know eveyone is busy so please accept my apologies if I am being too edmanding in my time of need.

[intree]

Bumping for some advice pls

[popeye1]

So you have untill the 30/3 for amended defence which gives you time to sort one out.

They now have to supply all the docs and they have to be originals.

Need a legal to help you with defence ,i am sure someone will be along shortly

[intree]

Hi Popeye

 

Thanks for your response as always - I am waiting for some legal information on this Notice of Hearing so dont know if they will pursue the matter and pay £135 orr just become a bigger pain in the neck.

 

Ill let you know as it goes on...................

[intree]

bump

[42man]

So let me get this right Intree.....the judge has ordered the other side a copy of the ORIGINAL default notice !! and an ORIGINAL of the agreement ? and a notice of assignment ? I presume you can only wait for the amended POC's now...

[intree]

Hi 42man - Thanks, I have been trying to get your attention - but you have been busy.............Thats correct the originals, the Judge also asked them to change the name on the POC if they wish and also the date as this was wrong on the original POC for the agreement.

 

They need to do this, but like I said I have never had a default notice, I have also never received notification that Open+Direct have changed hands to Creation, i hope they see the sense and settle as all payments (at £24 pm, instead of £50) has been paid to them via CCCS and now their solicitors since Feb 2007.

 

Any advice would be appreciated.............OH by the way the ADJ Blasted the defence and said it was all none relevant, he also advised that the DN was pleaded as not being received, but is should have been pleaded as they never sent one...............so not sure what.

 

Thanks 42 Man

[42man]

Well I don't think there is much else you can do until the amended POC's come through, but my thinking is that if the judge has ordered the ORIGINALS, then they will struggle !!!

[42man]

Did you see this thread, - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Note it says 'service' of a default notice !! can they prove postage of the DN ? I know one cagger I think it was bobneedhelp who got a charging order scrapped due to (I think) the fact that the OC couldn't prove service of a DN...!! BUT i'm not 100% on this....

[Docman]

Hi intree

 

I see from the court order that you were before a deputy DJ. The ones I have come across are usually old dufers who don't know about consumer credit law but pretend they do. So you will need to educate them with your defence.

 

Can you post up the agreement (and any terms & conditins supplied) that is referred to in the Ameneded POCs minus any identifying details? I notice you refer to a Notice of Assignment [NOA] but there is nothing about an assignment in the Amended POCs. Can you explain? Finally, you have been to the court. Did you put in a formal written defence or did you just go along and explain your position? If you did put in a written defence, can you post upa copy without your peronal details or court reference?

[intree]

Hi Docman

 

My original defense was as follows as they provided no agreement and I had not received any default notice - Ill attach the docs in a short while as I am not able to access the scanner at the moment.

 

The reason why the NOA was asked for was the original debt was with Open and Direct, the judge queried them at the hearing, asking why Creation were taking the action, so they have now supplied the certificate of incorporation... here is what was in the defence its under this thread -I have changed it as I do not want them reading my details etc from the otherside

 

Re: Creation Consumer Finance - Anyone

[42man]

No true copy of the DN supplied ?

 

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the claim.

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

• 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 a 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

[intree]

Image hosting, free photo sharing & video sharing at Photobucket

 

http://i387.photobucket.com/albums/oo313/intree/TERMS.jpg

 

http://i387.photobucket.com/albums/oo313/intree/AGREEMENT.jpg

 

hope you can give some advice, I have today sent a CPR letter requesting further information and also asked why they have refused to deal with the CCCS.

 

http://i387.photobucket.com/albums/oo313/intree/COI.jpg

 

I never received a default notice but was sent this fax dated 20 October confirming they sent it....

http://i387.photobucket.com/albums/oo313/intree/DNAlleged1.jpg

http://i387.photobucket.com/albums/oo313/intree/DNALLEGED2.jpg

 

Thanks 42man, I am very annoyed that they can take the matter to court despite me being on a payment arrangement and this is being ignored by the court..............how stupid and how unjust is the system

[42man]

The default notice is as good as loo paper it says it was sent on the 2nd September and requires you to rectify by the 16th Spetember.....unless they hand delivered it the day they typed the letter then, the default notice does not allow any time for postage so they have NOT given you 14 clear days to rectify..!!!

 

Have a read here from point 29 onwards in the defence...!! - http://www.consumeractiongroup.co.uk/forum/legal-issues/130165-nationwide-cca-arrived-letter-6.html

 

I'd challenge them to prove service of the default on the date stated on the letter !! You need to highlight this to the judge !!! AND WHY !! See my post 8 above and especially the last point !! "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 a 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"

 

Had you seen this thread also ? - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[intree]

Thanks

[42man]

I'm not an expert on this part of a DN, but check it against this too - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/132160-really-confused-3.html

 

And another - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161927-amendments-default-notices-cca.html#post1736169

 

And another useful thread too - http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

[intree]

I am so pleased that your here to advise as I was at my wits end, however I did point this out to the Deputy Judge and he stated that its 14 days from date of letter but he asked their solicitor to confirm this and she never did...........so AM I HONESTLY able to defend these idiots and what would my defence be - just the paragraph above or would i mention charged and the unfairness of the way they have addressed the matter etc.

 

I can not see how I could have got the DN notice the 2nd or even 3rd day as it was allegedly posted from Ireland, on Tuesday 2/09/08 AND THEY GIVE ME UNTIL 16/09/08 - SO please explain what can they do now and what am I liable for under the agreement ...............I am reading the threads you have suggested but can not wait to raise this matter now at or before the hearing.

 

Thanks

[42man]

If you really feel ballsy, ring the solicitors and point out the defective DN, and state that you will be making a counterclaim. And highlighting this to the judge, state that you will not make a counterclaim if they pay your costs and withdraw the claim !!

 

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.

 

You point this out to the judge !!!! note it says 14 days AFTER the date of service !!

 

[pompeyfaith]

if you check the CPR rules at the ministry of justice site it clearly states their 4 days 4 service

[42man]

Have you got a link to that Pompey ?

[intree]

Hi 42man I have just read through the forum and can only find the following in the amended 2006 part of the CCA 1974...........so I am a bit confused now as they did not terminate the agreement until 2 October

 

sorry posted before i finished 2 October 2008, the notice was allegedly served on 2 September 2008, and was valid till 16 September 2008, their solicitor wrote terminating the agreement on 02/10/2008 so are they still able to take this to court as they took the action to terminate much later than 16/09/08................its just that I dont want to go back to them and then realise im made a boo boo..................

 

here is the quote from the 2006 ammendment

 

"Consumer Credit Act 20062006 Chapter 14 - continuedback to previous text

Section 14: Default notices

36. Section 14 amends section 88 of the 1974 Act to extend from seven to 14 days the minimum period after which a creditor or owner may take action in respect of the agreement after having issued a default notice. Section 87 of the 1974 Act requires a creditor or owner to give the debtor or hirer a default notice in the prescribed form if he wishes to terminate the agreement, demand earlier payment of a sum, recover possession of any goods or land, treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or to enforce any security. Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

[atwozee]

It means that by terminating the account and informing you of this they have waivered any right they would have had to rectify the error in the DN – they can’t now issue a compliant DN because the account is now terminated – they could sue for the amount stated in the arrears but if that had penalty charges in it you could dispute the accuracy of the sum involved.

[intree]

Thank you all for your kind words and advice I feel a bit better today especially as I have just been made redundant too.............oh well thats life I guess...nevermind

 

 

Any one able to put in a complete defence for me or shall it be ok to defend the whole claim on the basis of the Defective DN...as sited by the goodman 42man

 

I have searched the internet and can only come to the facts that they are allowed to serve a default notice, even though it does not give 14 days, as long as they dont take any action until after that date - am I correct please advise - this is the quote :

 

 

 

Default notices

 

The event where you fail to respond to a Notice of Default. This gives the customer 14 days to remedy the breach of the agreement specified in it - typically payments in arrears.

A default notice should be the final letter in the ‘cycle’ before taking action. The default date, as reported to the credit reference agencies is the date specified in the Default Notice, which the customer was told to remedy the breach by. The account goes into default once the breach is not remedied in the specified time.

The lender must allow 14 days from service before taking subsequent court action. Most courts expect 19 days overall due to post delays, weekends and public holidays. Upon default, you cease being a customer, but become a debtor. Defaulted accounts are regarded as serious arrears and will remain on your credit report for six years from the date of default, after which they will automatically be removed.

 

in effect they served the alleged default dated 2/9/08 and this expired 16/09/08 but took no action until 02/10/08.......this is what is confusing me to be honest - sorry to be a bit thick but i need to understand clearly....sorry for duplicating what I have already said - I just need to be 100% before I contact the otherside ...

 

Thanks

[atwozee]

This is my interpretation of it and I hope it helps –

 

The purpose of the default notice (DN) is to let you know what you need to do to put a delinquent account back in order – if you ignore the DN then the creditor will register a default with the credit reference agencies – they may also elect to terminate the agreement if you do not remedy any breach stated within it.

 

That is the main purpose of issuing a DN and it is a requirement of the CCA 1974 that when one is issued by the creditor it must be in the correct format – the format for DN’s is stated in the Consumer Credit (Enforcement. Default and Termination Notices) Regulations 1983.

 

If the creditor issues a DN that doesn’t comply with the regulations then that notice cannot be seen to be valid – it would be unfair on the debtor to allow a creditor to make any enforcement against the debtor on the back of the invalid DN and it would be a clear breach of the CCA 1974.

 

In your case – the creditor has issued a DN that doesn’t comply with the regs so this is a breach of s88 of the CCA 1974 – it is therefore invalid – they proceeded to terminate the account without issuing a compliant DN and this is a breach of s87(1) (a) of the CCA 1974.

 

Once an account/agreement has been terminated it cannot be un-terminated unless both parties to the agreement allow this - this is something I am sure that you won’t want to do. The creditor can terminate an agreement at any time but how they do so will affect their rights at the point of termination – that is the important bit.

 

So where this leaves the creditor is in a situation where they have terminated the agreement between you but have not done so in a manner that would allow them to recover the entire balance owing under the agreement – they can only demand that sum after issuing you with a valid DN.

 

Simply put – if they were to demand the balance from you (because you fell behind with payments) without issuing a DN you would be within your rights to ignore this request – if they then terminate the agreement they effectively lose the right to ever demand the full balance owing under the agreement.

 

A non compliant DN must be viewed as not satisfying the requirements of the act – effectively it is the same as not issuing one in the first place and the net result is the same as above.

 

The most the creditor could do would be to pursue you for the amount stated in the DN – however if that amount was not an accurate representation of the arrears at the time it was issued then you would have grounds to defend against that claim.

 

Post 14 by 42man gives you the case law – and the claim for damages is relevant.

 

Can you just clarify the NoA – has the original creditor just been incorporated into another company – or has your original debt been sold on to a new company?