N150 assistance needed...please? / **WON**

[banker_rhymes_with]

Hello NGEddie!

 

Thanks for these details.

 

The Agreement being recent, suggests that you will almost certainly have a hard time with the Agreement itself. That's because it was made after the 2006 Amendments to the Act came into force (The Consumer Credit Act 2006), so the Agreement is likely to be enforceable. Not definitely so, but the Act (The Consumer Credit Act 1974) lost its front teeth and testicles when the 2006 came into force.

 

I can't quite read the one you sent via PM, but I would think it's more likely to be OK than not.

 

However, it is indeed a Regulated Agreement, and they have messed up the s87(1) Default Notice (from the one you sent me, they have ), then that is probably going to be the cornerstone of your Defence. They have not allowed you 14 clear days from the Date of Service, and they have Terminated on the back of that, so I think they have now limited themselves to just any Arrears that were already due.

 

It looks like the Default Notice is about 3 days short of the Statutory 14 Clear Days you must be allowed. They have failed to allow for Postage.

 

It's not certain you will win on this basis, but you should. The battle will be to convince the Judge on the day, and be prepared to Appeal if you get a bad Judge. So, your Defence must be slick, and you must understand every word of it by the time you get to Court (unless we can persuade them to drop it when they realise their problems).

 

The good news is now they have issued proceedings, and appear to have demanded early payment of sums that were not otherwise yet due, then that suggests they have indeed Terminated the Agreement. If so, and taking you to Court is a pretty conclusive confirmation of Termination, then they can't now issue a fresh Default Notice to remedy their self-made problems.

 

If their Claim was poorly put together, i.e. not properly pleaded setting out all the facts along with a Statement of Truth etc, one option might be to put in an Embarrassed Defence...that being a couple of lines saying that you cannot plead, because you cannot see what Claim you have to answer, something like this:

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

If you are a Consumer, and it sounds like you must be if it is a Regulated Agreement, then that means you are likely to be an individual, or small Partnership of 3 or less people, so the Claim will be automatically transferred to your Home Court.

 

Any decent Judge should see that their Claim is pants, and Order them to serve upon you a full Particulars of Claim, properly pleaded, in compliance with the Civil Procedure Rules (CPR) and The Consumer Credit Act. They will be given a few weeks to sort that, and you will be given a few weeks thereafter to file a full Defence and any Counter-Claim you wish to make.

 

I can see one deliberate mistake already. They are seeking County Courts Act 1984 Interest!

 

That's jolly bollards that is.

 

They can't do that if the Claim is in relation to a Regulated Agreement, here's why:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

This bit...

 

(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[2] ;

 

(b) grants—

 

(i) the landlord of a dwelling house, or

 

(ii) the mortgagee under a mortgage of land which consists of or includes a dwelling house,

 

a suspended order for possession.

If need be, plan on driving to the Court to deliver your initial Defence if you need all the available time. It is quite OK to take it to the wire, just do not go past it, or they will win by default.

 

Another strategy could be to put in the above Embarrassed Defence, let that get filed, and then go straight in with an N244 Application to have their Claim Struck Out.

 

CPR 3.4 (2) (a) because the statement of case discloses no reasonable grounds for bringing the Claim.

 

CPR 3.4 (2) (b) because the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of proceedings.

The first one would be on the basis that the Default Notice is defective, and without that, they lose the benefits of s87, so can't lawfully ask for sums not yet due, nor can they Terminate, nor can they take the next step, i.e. take you to Court. A decent Judge would throw out their Claim as soon as they saw they did not have a valid Default Notice.

 

The second one builds on the first, so make the first one hard hitting. Add in the s69 County Courts Act 1984 Interest they are Claiming, to add weight to your Strike-Out Application. IOW, hit them hard from two sides, no Default Notice from one, and trying to make you pay s69 Interest to which they are not entitled from the other side.

 

The abuse claim then holds water, because it is an abuse of process to haul someone into Court to make them pay something which they just do not owe, and that a sophisticated financial group should know a lot better than to demand.

 

OK, that should get you thinking! I'm off to my pit, we can take this up Tomorrow.

 

Cheers,

BRW

Edited December 10, 2009 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello NGEddie!

 

The benefit of going straight for a Strike-Out is you can go straight for their throat before they have time to correct themselves.

 

Also, all Claims are effectively Multi-Track before they are allocated to a Track, so you can submit full Costs, and you will get them if your Strike-Out Application is successful.

 

By that I mean submitting a full Bill of Costs, with Litigant in Person time charged at £9.25 an hour, and you add in lots of that for all the time you have spent researching this, plus Disbursements, such as Printing Costs, Paper, Ink, Travel to Court etc etc.

 

You have already got them on the s69 County Courts Act 1984 Claim for Interest, and if you can make the Default Notice stick, then that's it, they lose.

 

A well put together Strike-Out has the advantage too that in theory, it is one where you can win, but can't lose, whereas they can't win, but can lose.

 

If you are not successful, then their Claim will be allowed to proceed to a full Hearing. That might then give you a second bite at them, possibly with another Judge, who may well accept that the Default Notice is indeed defective.

 

If it were me, that is what I would do:

 

(1) Submit an Embarrassed Defence.

 

(2) Count to 10...

 

(3) Submit an N244 Application to Strike Out their Claim on the basis of CPR 3.4 (2) (a) and (b), i.e. defective Default Notice and s69 Interest being Claimed.

 

(4) Along with the N244, add a Witness Statement and Bundle of Documents to support that, and draft that as if it was also a Defence in its own right...but ask to have time to prepare a full Defence anyway!

 

This could buy you some time, because all you need do is submit the Embarrassed Defence for the deadline, and then concentrate on the Witness Statement instead, and fire that off with your N244 Application as soon as it is ready and you feel confident enough to walk in and argue the points.

 

All being well, you could win at the N244 Application Hearing and get Costs, or you may see it roll on, but with them getting a slapped neck for the s69 Interest issue, and with you having gained more time to compile and lodge a full Defence, one that builds on your Witness Statement.

 

Others may well suggest a different approach, so please listen to what others have to say, and plan on spending this week and weekend working on this. Drive to the Court if needed, if you need more time.

 

Cheers,

BRW

[NGEddie]

That sounds very interesting, and actually understandable, thanks for the time and effort writing that, I will read it again about 10 times until it sinks in

[supasnooper]

Here's all you need to know about Default Notices and why it is defective (by BRW) -

 

B_R_W's post on DN's

[NGEddie]

Ok BRW, after reading this all again I can full understand the part about not being able to claim the interest, clear as day

 

Just one thing, IF it went that well and it got struck out or whatever happened due to them messing up the default and looking bad trying to claim for something they are not allowed to, what happens next? or is that it? It just seemed to me, if the DN is defective does this actually mean the agreement is not terminated as a effective DN has not actually been served? i am probably complicating things here!

 

Snoops,

 

I have read as best I can the link you gave, but i really cannot see, or maybe its so clear i am missing it which part you are refering to. I understand I need to know this inside out incase I did get to court with it, but the more I read it the more I seem to be confusing myself

Could I have a clue to which section you want me to see?

I do get the fact they have not given enough time, and alsothey have not underlined the words they should have of the parts in capitals

 

So on the initial defence for I am going to submit, do I go into detail quoting which sections they have not compied with etc....?

 

Thanks again for all of you guys help, I am hoping to have this sorted by tomorrow and ready to send Saturday.

[banker_rhymes_with]

Hello NGEddie!

 

Just one thing, IF it went that well and it got struck out or whatever happened due to them messing up the default and looking bad trying to claim for something they are not allowed to, what happens next? or is that it? It just seemed to me, if the DN is defective does this actually mean the agreement is not terminated as a effective DN has not actually been served? i am probably complicating things here!

You need to read the first few pages of this Thread by X20, ignore the other pages, as that's just people getting confused by Trolls:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

But to quickly answer your question, the Law tolerates law-breakers. IOW, just because it is defective, does not stop it from existing. It's just that it is no use to them for the very purpose it was created.

 

They then charged ahead as if it was cool as a cucumber, but they later found, because you will tell them, that they raced out the door and forgot their Default Notice trousers. Instead, they grabbed some crotchless fun panties, scribbled Default Notice on them, and said to themselves: "that'll do nicely!"

 

The Law allows them to stand outside looking stupid with no trousers on. The Law can see what they are wearing, and can see it has the words Default Notice written on it. But it has no trouser legs, so they can call it what they like, but they need the trouser legs, and they have not got them.

 

Having slammed the Door on the way out and thrown away the key, they can't now go back to find some new trousers.

 

The Law is clear that if they want to enjoy the benefits of s87, then they need to have issued you with a valid Default Notice, and you need to fail to remedy it, before doing those things that s87 allows them to do.

 

The fact is, they have done those things that s87 allows them, but without the thing they need to make it lawful. It is therefore unlawful, and so they lose the benefits they thought they had secured.

 

At best, they are now left with just the Arrears, provided the Agreement is sound as a pound, and they can find it. But, they have started Court action against you, and have demanded that you pay two things to which they have no entitlement:

 

(1) Future sums not yet due (they need s87 for that).

 

(2) s69 County Courts Act 1984 interest (they are not even allowed that, ever, because this is a Claim based on a Regulated Agreement).

 

You can fight back, and you will deserve costs for doing so.

 

It's quite likely that the costs you can claim will match the Arrears they want, so it could well be heading for a draw at best for them.

 

This will all depend on how well you handle this, and on what sort of Judge you get.

 

Saturday is tight, unless everyone, and you more than anyone, thinks the Embarrassed Defence is the one to run with. A full Defence will take longer, and I think it likely you won't have that ready by Saturday...unless you are willing to stay up all night and the next night, to get this done.

 

It is hard graft, and I stayed up till after 01:30 just to help you out...by which time you had gone to bed! No offence intended there, just trying to let you know what it will take to pull it all together for Saturday.

 

Don't underestimate the enemy, the Judge Lottery, and the enemy's brass neck. Even with a well crafted Defence, you can still lose, but your chances of beating them go up steeply if you dig deep and get your head around all the issues.

 

I am hoping to have this sorted by tomorrow and ready to send Saturday.

That can be done, but will need a lot of effort on your part to make it.

 

I hope this helps.

 

Cheers,

BRW

Edited December 12, 2009 by banker_rhymes_with
Typo

[vint1954]

Have you seen this today for a Judge lottery. No CCA, No DN and no TN, but the CAG member lost.

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/157455-defaults-including-charges-interest-8.html#post2637727

[banker_rhymes_with]

Hello vint1954!

 

Have you seen this today for a Judge lottery. No CCA, No DN and no TN, but the CAG member lost.

I have now.

 

Judge Lottery again. This is the problem. The County Courts are, sadly, riddled with pro-bank biased Judges who are a complete and utter disgrace.

 

There are some good Judges, but there are at least as many very bad ones. However, it gets harder for them to be quite so bad the further up the Court food chain an Appeal goes.

 

My advice to everyone is to fight every battle on the assumption it will end up going to Appeal, and plan for that rather than winning the first Judgment. That said, fight like hell, and make it clear to all that the issue will not end if you are defeated first time out.

 

Cheers,

BRW

[NGEddie]

Hi BRW,

 

Firstly thank you very much for staying up to reply for me, I do really appreciate all your efforts.

 

I had just been reading Supas Renstons case, and had no idea the length and depth of the defence letters people are sending in or maybe his case was much more involved than mine? Also there was a letter from a solicitor saying how he had got his statement from a consumer website! He still won though

 

The more I read the more things look familiar and I am copying sections from threads that I can hopefully use, I must admit for my initial defence I was under the impression that a couple of lines stating where they claimant has not complied with regulations would sufice!!!!!

 

I do just feel a bit lost as this stuff is way over my head and I have not touched anything like it before

 

As an example, I have noticed after many numbers for rules a previous case is stated, for example this one I found from snoops post :-

 

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit SNOOPS 07) in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

Is this something the court would just know of or have to look up and then make sure it is correct?

 

So then, if we were to go with the Embarrasment option, is this :-

 

CPR 3.4 (2) (a) because the statement of case discloses no reasonable grounds for bringing the Claim.

 

CPR 3.4 (2) (b) because the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of proceedings.

 

---------------------

 

All that would be needed to send in?

[banker_rhymes_with]

Hello E!

 

No, the CPR is for a Strike Out, the Embarrassed Defence is the two lines I quoted, here they are again:

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

WRT this...

 

Is this something the court would just know of or have to look up and then make sure it is correct?

 

Sadly, unless you get one of the decent Judges, you are walking straight into hostile territory.

 

The Court will not help you.

 

You have to defend yourself, and that starts with your written Defence, and is followed up by your preparation and conduct in the Courtroom on the day.

 

I can see you have a bit of a steep learning curve ahead of you.

 

My suggestion of the Embarrassed Defence was to try and buy you some time, but the danger there is the Court may think that is what you are doing, and roll on with just those two lines.

 

But it's better to get that in, otherwise you lose straight away by default. No Defence submitted on time, they win.

 

So, a short Embarrassed or Holding Defence might just buy you some time, and this time you might get away with it, because of their defective Default Notice and dull attempt to ask for s69 Interest.

 

The latter could be a big help to support your short initial Defence.

 

A full Defence will take longer, and you are many hours off being ready to draft that. Again, no offence intended. The questions you are asking are just showing that you have some way to go before you will be ready to get your head around it.

 

That said, most people who came to CAG, probably had to do a crash course to get up to speed, and many did it. There is no substitute for a lot of tea or coffee, and a late night or two reading Threads.

 

If you are desperate on time, then the Embarrassed Defence is all you can go for...but while that is fluttering its way to the Court, use the time to read, and read, and read, and get up to speed.

 

My suggestion for an N244 Application to strike them out is to try and nail them, but also to try and buy you more time to get sorted and with the beat.

 

If you can scan and Post their Claim Form, or better still, type that out word for word instead, then we can all try to see if their Claim is bad enough to justify an Embarrassed Defence.

 

The s69 issue is a good start, because that shows their Claim can't be that good, otherwise they would not have included that.

 

I may not be around all the time, so you need to be aware this will be a team effort, and you are the team! Others will drop in, and so will I, but the driving force has to come from you. The best results on CAG are where the person helped themselves, and helped others to help them by Posting the key details others needed to see how they can help (by that I do not mean Posting details that will compromise your identity, I mean Posting the meat of their Text, and enough of it to let us see what is weak about their position).

 

We need to see as much as possible, or else we can't see the mistakes they have made.

 

Cheers,

BRW

[NGEddie]

Hi again!

 

I can scan and put it up if needed, but the Particulars of Claim, if thats what you mean are as follows :-

 

Particulars of Claim are :-

 

The Claimants Claim is for the sum of XXXX being monies due and payable under the terms of a written finance agreement entered into between the parties on xxxx full particulars of which have been supplied to the Defendant. The Claimant also claims interest thereon pursuant to Section 69 of the County Court Act 1984 at the rate of xx per annum

 

Hope this helps!

[banker_rhymes_with]

Hello E!

 

OK, that's looking good for an Embarrassed Defence. For a start, they have not stated that it is a Regulated Agreement, when we both know it is.

 

That same paragraph contains the s69 cock-up, so it's not looking good for them as a properly pleaded Particulars of Claim.

 

I think you could go for the Embarrassed Defence.

 

What do others think?

 

That is easy to get in, and you can fire that off Tomorrow and/or File it on-line perhaps.

 

Did they issue via Northampton?

 

I ask that, because that is the bulk issue centre, and if they filed it there, then they did not need to include a copy of the Agreement or Default Notice, at least not initially.

 

You need all the time you can get, so I think the Embarrassed Defence is the way to go, then work like a dog from now onwards to plan Phase Two!

 

I would not be too worried about saying things on CAG, provided you do not say your name, or say anything too obvious, you can chatter away as much as you like. Even if they spot you, so what, you are far, far better off getting help here than going it alone.

 

If not Filed at Northampton, then where did they File it?

 

If not at your Home Court, then there will be a delay of at least a week while the Claim is automatically transferred to your Home Court.

 

Use that time.

 

In a week, I bet you will be well up to speed, and starting to get your head around the issues.

 

The Hearing will take a while to come through, so don't get too stressed, things tend to plod along for a while provided you get a Defence in, even the Embarrassed Defence.

 

What you can't do is knee-jerk a full Defence in fast, because that will be far worse if it goes off half-cocked and badly assembled from a hotch-potch of chunks copied from other Defences on CAG.

 

Every single word in your Defence must be there for a reason, and you must understand why everything is there.

 

If you start with the Embarrassed Defence, then I think we can see you understand that, and it won't let you down by saying anything you do not want it to say.

 

If the Claim was issued via Northampton, then you can add a few extra words, i.e.:

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

The bulk issue system in the above means Northampton.

 

Chin up, we'll get there!

 

Cheers,

BRW

[NGEddie]

Hi BRW,

 

No it wasnt Northampton where it was issued.

 

I just thought of something, when we recieved the court papers, there was just the 3 sheets the court issue, the repsonse pack, and a copy of the agreement............should there have been a copy of the default notice or anything else as well?

 

So the Embrassment plea, is not the same as defending the full claim, which is what I was orginally thinking or doing? I see where you are coming from, if there DN is deffective, applying for the full amount early and court action has terminated the agreement, they cannot issue another DN, therefore you cannot admit or defend the claim, as we are saying there is no claim to plea against, therefore embarrasment fits the bill?

 

I think I am starting to get it now, so the letters I have seen which people sent in to the court, are the FULL defence that you submit upto 7 days before trial?

 

Thanks again!

 

Getting there

[banker_rhymes_with]

Hello E!

 

No it wasnt Northampton where it was issued.

OK, then leave the words in red out, and just use the basic Embarassed Defence.

 

I just thought of something, when we recieved the court papers, there was just the 3 sheets the court issue, the repsonse pack, and a copy of the agreement............shou ld there have been a copy of the default notice or anything else as well?

It's a Regulated Agreement, so if they wish to enforce that following an alleged default on your part, then they will need both the Agreement and also the Default Notice. So, yes, the Notice should be included, and its omission is another damned good reason to use the Embarrassed Defence.

 

So the Embrrassment plea, is not the same as defending the full claim, which is what I was originally thinking or doing? I see where you are coming from, if there DN is defective, applying for the full amount early and court action has terminated the agreement, they cannot issue another DN, therefore you cannot admit or defend the claim, as we are saying there is no claim to plea against, therefore embarrassment fits the bill?

Sort of, you are defending the whole thing, but the Embarrassed Defence is making it clear that their Claim is so pants, and so badly compiled, that you cannot even start to compile your own Defence.

 

So, it's not a plea as such, it's saying you cannot even say anything, because it is impossible to answer the Claim until they get their act together and make it clear what Claim you have to answer.

 

For all you know, it could be an Agreement for a Rocking Horse. Apart from a date, they have not stated anything that illuminates what, exactly, the Agreement is about. As I say, they have not even mentioned that it is a Regulated Agreement, which you can argue is potentially trying to cloak the fact that you have a lot of protection from the Act. That's not nice of them, and that warrants an Embarrassed Defence.

 

To put it bluntly, you are saying, this is not good enough, Matey, not good enough at all. Have another go, and then I might be able to respond.

 

When this goes before a Judge, they should spot that their Claim is far too vague, and they should issue an Order requiring them to serve upon you a full Particulars of Claim, usually by a date and time, and also ordering that they file a copy with the Court by the same deadline. The Order will be an N24 Order.

 

It will probably give them four weeks or more, and the Order will also probably say that you then have a few weeks thereafter to respond with your full Defence.

 

What I am suggesting is you might like to consider an N244 Application to have their Claim Struck-Out, but the best timing for that needs some discussion. You could fire it off just after sending the Embarrassed Defence, and get it in before the Court decides what to do.

 

Or, you can wait for the Court to issue an Order asking them to submit a full Particulars of Claim.

 

What you must watch out for is them getting in ahead of you with an N244 Application of their own, although it won't be the end of the world if they do, it just means you would have to fight that off via Witness Statement and an Application Hearing.

 

The whole point here is you cannot even start to draft your full Defence, because they have made a really lame attempt when drafting their Claim. It is not good enough, so don't even try to guess what they want. We have a good idea, but your job is not to predict what they want...or else you will end up chasing your tail.

 

Bottom line is, throw this straight back at them via the Embarrassed Defence, say no more, and wait for the next move. Use the time this gives you to immerse yourself in CAG, and read how others have handled the same thing.

 

Most Claims are very, very similar, and so are the Defences. Start reading CAG Threads, and cut/paste anything useful. Grab any good Defences, and start work on a skeleton Defence, or framework, around which you can start to hang the meat of your own Defence.

 

Try to understand what is being said, and read the Case History that is quoted, and try to see why it is relevant. I have given you links to the 1974 and 2006 Acts, follow them, and click on the 1974 link, and when there, click on sections 77 (yours is a fixed-term Loan, so ignore s78 ), then hop back to look at s61, s65 and then s127 (not that much use to you as yours is a late Agreement, but worth reading). The Termination issues while in default are covered by s87 and s88...they are key, and that area has the potential to win this for you, or at least reduce what you might owe.

 

There is Statute too, and this covers things like the wording of a Default Notice. See the link by Supasnooper to one of my Posts that will help on that, and also help to cover the Postage issues, time needed for Posting via 1st and 2nd Class Mail.

 

Lots to read, but I think the Embarrassed Defence is the best way to start. Get that off, and then get reading. Your goal is to see these people off, because never forget they will kick you when you are down, so do not feel any sympathy for them if you manage to win and limit their Claim to no more than the Arrears, and even reduce that down via your own Costs and any Counter-Claim you can point at them when you hit them with your full Defence.

 

A Strike-Out could even nail them earlier, but lets get to that in good time. First thing is to hit the Defence deadline, and the Embarrassed Defence is good enough I think to hit that first target.

 

I do hope this helps.

 

Cheers,

BRW

Edited December 10, 2009 by banker_rhymes_with
Smiley zap! Plus added clarity.

[banker_rhymes_with]

Just a quick one to say I've edited the above Post, so refresh the screen to see the changes.

 

Cheers,

BRW

[NGEddie]

Thanks BRW, you are a star

 

I am making notes of all this, then reading again it starts to make a little sense, how scary is that, lol

 

I feel comfortable with the embarrased defences, I actually read this somewhere on another forum weeks ago and it worked for a few cases.

 

Well, they may have rushed in like a charging bull, so there definatley seems to be some mistakes that are in my favour

 

Just to clarify, the CCA was written in 1974, and ammened in 1983?

 

I am just getting a bit confused, I have this :-

 

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

i. a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

ii. a description of the agreement

iii. the name and address of both the debtor and the creditor

iv. details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

v. a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach

vi. a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you

 

but when I look here :-

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

 

It is different

[NGEddie]

Also just quickly, when I send the denfence back, along with the embarrased part, do I have to state, deffective DN, no DN supplied with papers, unlawful attempt to claim interest etc....?

 

Thanks!

[MandM]

Thanks BRW, you are a star

 

I am making notes of all this, then reading again it starts to make a little sense, how scary is that, lol

 

I feel comfortable with the embarrased defences, I actually read this somewhere on another forum weeks ago and it worked for a few cases.

 

Well, they may have rushed in like a charging bull, so there definatley seems to be some mistakes that are in my favour

 

Just to clarify, the CCA was written in 1974, and ammened in 1983?

 

I am just getting a bit confused, I have this :-

 

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

i. a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

ii. a description of the agreement

iii. the name and address of both the debtor and the creditor

iv. details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

v. a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach

vi. a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you

 

but when I look here :-

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

 

It is different

 

CCA was 1974 and amended 2006. I believe the quote above is taken from the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 which is a furter related set of regs.

M

[NGEddie]

Cheers!

 

Here if anyone else needs them

 

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

 

I cant see to fine the V and Vi part in there though

[NGEddie]

Hello everybody!

 

I have been doing some reading, and more reading, and then some more reading

 

Would anyone one be kind enough to have a look at what I have thrown together? I am sure you can tell I am struggling a tad! but at the same time understand the importantce of fully understanding what I am writing.

 

This is a probably going to make you laugh, please be gentle but here goes :-

 

In the XXX County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants 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 claimants' 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(COPIED THIS SO PROBABLY WRONG). In this regard I wish to draw the courts attention to the following matters;

5. It is neither admitted nor 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.

6.Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 11 days for compliance not 14 days as required.

 

7. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit SNOOPS 07) in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

OR

7. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

8. Therefore, it would be the respondents’ position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective.

9. It is noted 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 invalid and further enforcement action should not be taken until such time as a compliant notice is issued

 

10. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

10. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974.section 87 makes it clear that a default notice must be served before a credit 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

 

11. 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

OR

 

(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.

 

 

11. It should also be noted the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue(WHAT DOES THIS MEAN?!)

 

 

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 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) should render it invalid

Conclusion

13. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

14. 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

===============

I dare say there are many things in there that dont need to be, as well as at the same time it lack things, like the part about not being able to claim county court interest as the agreement is regulated etc...

 

I am still not 100% sure if I need to be sending this all in now with the initial defence, or if this goes afterwards? It would be good to get some clairty on that as well?

 

Many thanks for any comments, information, jokes or help

 

E

[NGEddie]

Changed title

[banker_rhymes_with]

Hello E!

 

It's coming together, but have they mentioned a Default Notice yet?

 

I didn't think there was any mention of one in their Particulars of Claim.

 

IOW, the Embarrassed Defence is perhaps the best way to start, to avoid tipping into a full Defence before you are good and ready, i.e. when they have been forced to put all of their Cards on the Table.

 

What you need to avoid doing, is defending anything before you need to defend it. Otherwise, you could second guess any number of things, and miss a better chance to kick them between the legs with a knock-out Defence that concentrates on the core issues and does so clinically and with great effect.

 

The Embarrassed Defence puts the ball back into their court, and should buy you time to plan the real Defence.

 

Already you are starting to get your head around it, but imagine how much better you will understand this with a few more days research...or a couple of weeks more research!

 

You need some time to explore the N244 Strike Out strategy too, because that is also open to you if you grab them while they are in a spin when they see the short Embarrassed Defence!

 

While they are gasping at that, and the likely Court Order that will follow it suggesting they get their act together, you could sneak up on them with a Strike Out.

 

I do know that the temptation is to say more, because you are rightly worried sick, and feel a need to stand up for yourself. But don't rush into things until you have to and, right now, their Claim is looking weak without them beefing it up. The Embarrassed Defence serves to highlight to the Court that you can see their Claim is weak, and that you are not about to defend something that the Claimant cannot be arsed to get right.

 

I hope this helps.

 

Cheers,

BRW

Edited December 11, 2009 by banker_rhymes_with
Typo

[NGEddie]

BRW to the rescue, thanks again

 

Ok well that sounds like a plan, so the part I have put together doesnt need sending yet?

 

In the part I will send, which I think I can actually get away with sending off Monday morning and what I need to get 100% correct, I am correct in thinking that this :-

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

-------------

is all I would need to write on the form and send off Monday? As in do I need to mention the default or unlawful interest claim? I am probably guessing now from what you said earlier.

 

I tell you, I have given myself countless headaches from reading over the past couple of days, but the microsecond something clicks and makes sense it is worth it

 

I have a long way do go, but there is a dot of light in the distance, I think lol

 

Sorry, what does IOW and CPR mean?

 

Cheers

 

E

[banker_rhymes_with]

Hello E!

 

But don't let me stop you!

 

The Defence you have put together is also not wrong, so it is not a case that one way is right and the other wrong.

 

My experience, for what it is worth, is that you need to think of Court like a boxing match. They have thrown a lazy slug at you, so you have the option of slugging back via a mid-way Defence. Then they will slug back, you will slug back, and in Court it could go any way.

 

By comparison, think of the Embarrassed Defence as a hard punch on the nose!

 

Then, while their eyes are watering and they are staggering back, you could hit them hard, again, on the same spot, with a Strike Out Application.

 

The Court then should take a good look at their Claim, and make a decision if it has merit. You already know that they are in trouble on the s69 Interest issue. So, that's half of their Claim down the toilet.

 

At worst, the Court will say this should go to Trial, but they must sort out their Claim before it does, and you must then be given time to respond to that with a full Defence.

 

This is not set in stone, and is only my own opinion. Do seek the advice of others, and keep reading.

 

Just saw your latest message:

 

In the part I will send, which I think I can actually get away with sending off Monday morning and what I need to get 100% correct, I am correct in thinking that this :-

 

1. The Particulars of Claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

-------------

is all I would need to write on the form and send off Monday? As in do I need to mention the default or unlawful interest claim? I am probably guessing now from what you said earlier.

Yep, that is all, just those two Paragraphs. No need to say anything else, because it's designed to hit the deadline for submission of a Defence, but also show the Court that you have clocked that their Claim is weak and needs more work.

 

Sorry, what does IOW and CPR mean?

My apologies, I try not to speak in code:

 

IOW = In Other Words

 

CPR = Civil Procedure Rules

 

CPR is what governs how the Courts operate, so you need to get your head around that too, here's where you start:

 

Home - Ministry of Justice

 

The CPR is covered via one of the Tabs there, and opens up a whole world of fun.

 

Cheers,

BRW

Edited December 11, 2009 by banker_rhymes_with
Typo and Clarity

[vjohn82]

I agree with BRW... it's a good analogy although I consider ANY attempt by a DCA to take court action on a debt they know is unenforceable a strict hit "below the belt".

 

I think as I mentioned earlier in the post the best you can do is an embarrassed defence. It gives the other side something to think about... whether to proceed etc.

 

Put it in... and then see what happens and what they turn up with. The most important defence will be be the one in response to their documentation.

 

You're on the right track

 

Now go and tan their backsides!!!