Help please! halifax claimform **discontinued**

[Drowning but not sunk...]

Hi try looking at the top DCA legal Successes at the top of debt forum or this link is on there..

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/97211-claim-mbna-discontinued.html

 

Read that loads of great advice there..

[f1owers]

Progress so far - have Acknowledged Service and stated that I intend to defend the claim.

 

 

Defence so far:

 

The Defendant denies the claim as stated by the Claimant.

 

A default notice was received by the Defendant, however, it is submitted that such Default Notice was invalid in that it did not allow sufficient time to remedy the breach as required by law.

The Default Notice supplied by the Claimant was dated Saturday 18th June 2009 and was received by the Defendant on Monday, 23rd June 2009. The date to remedy the Default Notice was stated to be Sunday 2nd July 2009 thereby only giving 10 working days to remedy the alleged breach.

In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid.

The Claimant did not seek to remedy their Default Notice and further terminated the account by letter dated 1st July 2009.

 

 

 

I don't know how much detail to put in - one thread says to keep everything to a minimum and not to bang on about relevant case law. Others seem to have masses of it.

 

I am relying on the defective Default Notice and subsequent termination rather than previous issues re illegible CCAs - I believe this to be my best course of action?

 

Any thoughts?

[f1owers]

Anyone help or assist?

 

Thanks

[f1owers]

Further draft Defence:

 

The Defendant denies the claim as stated by the Claimant.

 

A default notice was received by the Defendant, however, it is submitted that such Default Notice was invalid in that it did not allow sufficient time to remedy the breach as required by law.

The Default Notice supplied by the Claimant was dated Saturday 18th June 2009 and was received by the Defendant on Monday, 23rd June 2009. The date to remedy the Default Notice was stated to be Sunday 2nd July 2009 thereby only giving 10 working days to remedy the alleged breach.

In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid.

The Claimant did not seek to remedy their Default Notice and further terminated the account by letter dated 1st July 2009.

 

It is therefore the Defendant's case that there has been an unlawful rescission of contract and that the Claimant is not entitled to claim the sums alleged or at all.

 

 

Please help - have been loosing sleep over this now.

 

Thanks

[Drowning but not sunk...]

Well I'm not an expert and there are loads of those on here, I would suggest that your defence is rather more than just a default notice. I would look along the lines of

 

1.Dates! Make sure you stick to the court deadlines!

2. Start with agreement sent to you! Quickly scan it post it up on here minus personal details and others will examine it for you.

 

When they look they will probably point you in the right direction for your correct defence..

 

Good luck..DBNS.. If you get no reply then I think (not sure) that if you hit the triangle bottom left then the site team look at it?

[f1owers]

Many thanks for taking the time to help! Stress levels are beginning to go through the roof!

 

Have done more reading and have extended my draft Defence to this now:

 

The Defendant denies the claim as stated by the Claimant.

On 06.04.09 the Defendant made a request under Section 78(1) of the Consumer Credit Act 1974. In due course a copy of the purported agreement was received by the Defendant. The copy supplied was illegible and failed to comply with Copy Document Regulations. The Defendant informed the Claimant by letter dated 02.06.09 that she had put the claim into dispute due to many of the terms in the purported agreeing being blurred. The Defendant was unable to interpret such terms and was further unable to make out the prescribed terms as required by schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

Subsequent to this, a Default Notice was received by the Defendant. It is submitted that such Default Notice was invalid in that it did not allow sufficient time to remedy the breach as required by law.

The Default Notice supplied by the Claimant was dated Saturday 18th June 2009 and was received by the Defendant on Monday, 23rd June 2009. The date to remedy the Default Notice was stated to be Sunday 2nd July 2009 thereby only giving 10 working days to remedy the alleged breach.

In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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.

The Claimant did not seek to remedy their Default Notice and further terminated the account by letter dated 1st July 2009.

It is therefore the Defendant's case that there has been an unlawful rescission of contract and that the Claimant is not entitled to claim the sums alleged or at all.

 

Improved at all?

[Drowning but not sunk...]

Looks better but like I say Im no legal eagle. However if you scan your agreement put it up then that may influence your defence ie it might be an application form not an agreement and therefore you might be asking to get this struck out? Someone will help it just takes time theres a lot of us..

[f1owers]

I have had the agreement posted before - although cannot get the thing to upload again at the moment.

 

It is an application form - possibly with prescribed terms but as it is illegible difficult to say for certain.

 

I really want this Defence finalised asap so that it is a weight off my mind.

[Drowning but not sunk...]

Try hitting the triangle bottom left.

 

Just in my opinion not legal. It looks fine, however as I understand it, you could alter your defence at a later date by supplying all parties as a Lip but not 100%. I have read quite a few posts by Vint1954 maybe "pm" him. Not sure if you are supposed to recommend people without asking but he seems quite straight and informed about these issues.

[f1owers]

I clicked on the triangle and it says for spam and abuse only!!

 

Thought about pm-ing someone who see experienced but don't know if that is appropriate.

 

Will hold out for another couple of days and hope someone experienced can help with the Defence (no offence intended DBNS - I really appreciate someone reading my thread!!)

 

xx

[f1owers]

As the header says - could someone please check over my Defence before I send it to the Court.

 

My thread is located here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/203985-help-please-2.html

 

I apologise for starting a new thread but I have had very little response from anyone knowledgeable on my thread.

 

"Drowning" has been great but I really would appreciate an experienced Cagger looking over it and giving me their thoughts!

 

Many thanks.

 

xx

[uptoeyeballs]

Hi f1owers,

 

You'll to need to get some structure around that.

 

Have you seen how to lay this out?

Are you doing this online or to your local court?

Is this the Halifax case?

Is the only problem with the "agreement" is it's difficult to read?

 

You also have some problems around the dates your using against default notice.

thereby only giving 10 working days to remedy the alleged breach

remedy is calandar days, also you need to use the date of service not the date you think you received it.

 

I'll see if I can find a few useful paragraphs to help you, but you are going to need to write it yourself and understand it inside out including any cases you refer to.

 

uteb.

[f1owers]

Yes am doing it online.

 

Yes it is the Halifax agreement.

 

Agreement terms were illegible.

 

Dates with Default Notice - you are putting me in a panic now! Surely the fact that they terminated the account before the end of the Default Notice would suffice?

 

Now my heart is pounding!

 

Will read some more and see if I can format it better.

[uptoeyeballs]

Dates with Default Notice - you are putting me in a panic now!

 

Don't panic! We'll work it through, there are plenty of examples.

[uptoeyeballs]

Hi F1ower,

 

Let's see if we can get the date right around the DN first. 18/6/09 was a *Thursday*.

 

18/6 Thur

19/6 Fri

20/6 Sat

21/6 Sun

22/6 Mon

23/6 Tue - Clear day 1

24/6 Wed - Clear day 2

25/6 Thur - Clear day 3

26/6 Fri - Clear day 4

27/6 Sat - Clear day 5

28/6 Sun - Clear day 6

29/6 Mon - Clear day 7

30/6 Tue - Clear day 8

1/7 Wed

2/7 Thur

3/7 Fri - Clear day 11

4/7 Sat - Clear day 12

5/7 Sun - Clear day 13

6/7 Mon - Clear day 14

7/7 Tue

 

Please check what I've written. Looks like you've got them a couple of ways there!

 

You say you recieved the DN on the 23rd. How do you know that? Do you still have the envelope?

 

Have a look over here for an example of a defence:

http://www.consumeractiongroup.co.uk/forum/legal-issues/210199-northern-rock-me-help.html#post2313632

Please don't just copy/paste it, but understand it and adapt to you needs.

 

If we get some activity going on this thread, you'll hopefull get some more opinions, confirmations or alternatives.

 

uteb.

Edited March 26, 2010 by uptoeyeballs
Missed a bit

[f1owers]

OK - have read through your Nothern Rock Defence and have added a few bits to my own.

 

DEFENCE

 

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

 

On 06.04.09 the Defendant made a request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement. The copy agreement subsequently supplied by the Claimant was illegible and failed to comply with The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which states:

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

As a consequence of the Claimants failure to provide a legible copy of the agreement, the Defendant informed the Claimant by letter dated 02.06.09 that she had put the claim into dispute due to many of the terms in the purported agreeing being blurred. The Defendant stated in her letter advising of the dispute that she was unable to interpret such terms and was further unable to make out the prescribed terms as required by schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

No legible copy of the purported agreement was ever received by the Defendant.

The Consumer Credit Act 1974 S78(6) states that if a credit fails to comply with a request made under Section 78(1) then “he is not entitled , while the default continues, to enforce the agreement.”

 

Despite this, a Default Notice was subsequently received by the Defendant. The Default Notice supplied by the Claimant was dated 18th June 2009. 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).

 

The Default Notice supplied by the Claimant was dated 18th June 2009 with date of service being 22nd June 2009. The date to remedy the Default Notice was stated to be 2nd July 2009 thereby only giving the Defendant 10 clear days to remedy the alleged breach.

In view of 14 days clear notice after service not being given, it is submitted that the Default Notice is invalid. 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 was also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but also providing the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

The Claimant did not seek to remedy their Default Notice and further terminated the account by letter dated 1st July 2009.

It is therefore the Defendant's case that as the Claimant’s failed to issue a valid Default Notice subsequent unlawful termination of the account – the Claimant has no right of action and the Claimant’s case cannot succed.

 

The Defendant therefore believes that the Claimant has issued proceedings without legal basis and that in the circumstances, the Claimant’s actions are vexatious and wholly unreasonable.

How's it looking now? Improved (I hope!)

 

xx

[f1owers]

Bumping as need to get this served.

[uptoeyeballs]

Hi F1owers,

 

You should number the paragraphs.

 

You can also state that they terminated the agreement before the stated remedy (even though that date was wrong).

 

Also, this is a well used paragraph you might adapt:

 

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.

 

uteb

[f1owers]

Thank you very much for your input.

 

Will number paragraphs and look at that last paragraph etc.

 

Other than that you think it is fine?

[freethemice]

You never mentioned which court this was from.

 

If like my Halifax they have filed from Northampton bulk there is a limited number of letters you can use.

 

I questioned mine as there was 2 diferent numbers on the application form and the account quoted in the claim form. The response was that this account was 'migrated' from a visa card to a mastercard in 2007 your terms and conditions were unaffected.

 

Have still not found out what migration is in a legal sense or wether they are allowed to do this under the consumer credit act.

 

Checking the statements the amount repayable did increase at this time from 2% to 2.25%. Although this doesn't seem a great amount it is clearly a change to a prescribed term and I would suggest this would further put the default notice in question. Just need the legalise to communicate this to court.

 

I am quite envious that you have your default notice. I never receaved one and despite cca, dsar, cpr requests have still been unable to get a copy.

 

Looks like I will be applying for a strke out soon if you want to read here's the link.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/251664-g-bank-scotland-scm.html

[f1owers]

Yes it is Northampton.

 

Will have a read through your thread with interest.

 

I have always thought the whole visa/mastercard switch was a bit questionable......

[freethemice]

You should have receaved a password to file your defence online at https://www.moneyclaim.gov.uk/csmco2/index.jsp

 

This is a limited defence so you may not fit all the above in.

 

The claim against me started in Oct last year. I filed my defence and got first a letter claiming judgement had been awarded against me then a letter from Halifax explaining their version of the migration and some other issues raised.

Nothing then until this month when I receaved the letter from SCM solicitors advicing me of a change of solicitor.

 

With you having definitive proof of unlawful recession of contract, after you have filed your defence, you are best taking the tactic I used to get Nationwide to discontinue. http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/203488-g-nationwide-credit-card-6.html

Copy the default/termination notice and copy it to Halifax with a letter simular to diddydicky's:-

"It has come to my attention, through research, that it is probable that your client does not in fact possess a hard copy of the default notice served upon me and instead seeks to rely upon a computer entry as to the date that a default notice would have been produced.

 

It is therefore possible that your client is unaware of the defective nature of the Default Notice served upon me

 

In order to assist your client i therefore enclose a copy of the aforementioned default notice and ask you to study it carefully as it is clearly defective in several aspects, non of which can be regarded as de minimus.

 

Having not been lawfully entitled, by way of this default notice to claim the benefits of s87 of the act, your client does not have a cause of action to claim sums not yet due nor to terminate the agreement lawfully. In fact your Client subsequently unlawfully repudiated the agreement , an action which i have accepted and the agreement no longer endures. .

 

I invite your client to study this document and to discontinue without costs, failing which i will bring this matter to the attention of the court together with reference to BOS V Robert Mitchell June 2009 in which BOS were heavily criticised by the judge for their behaviour in almost identical circumstances.and invite the court to strike out your clients claim as vexatious and an abuse of the court process.

 

Yours sincerley

 

XXX"

 

I followed this later with an offer that if they discontinued before xx date I would bear my own costs and they were very keen to accept.

[f1owers]

Defence submitted.

 

Have no idea who I would write that letter to as have had lots of letters from lots of different DCAs. Only place would be the Claimant address stated on the POC??

[uptoeyeballs]

Defence submitted.

 

Have no idea who I would write that letter to as have had lots of letters from lots of different DCAs. Only place would be the Claimant address stated on the POC??

 

It would make sense to sent it to the claimant.

[f1owers]

Oops - did not mean to sound quite so dumb!!

 

What I meant was whether to write to the Halifax or the Bank of Scotland who have now become Claimant.

 

All prior correspondence (prior to the DCAs) has come from the Halifax.

 

Going to cringe in a corner now......