Help Cout date and CCJ with charging order!!!

[cymruambyth]

The statute has now changed to 14 days so do I assume your DN was received before that change?

G

 

Correct, mine was received before the change in 2006

[Worsteve]

IN THE xxxxx County Court

 

Claim No: xxxxx

 

BETWEEN:

 

XXXXXXXXXXXXXXXXXXXX

 

Claimant

 

And

 

 

 

XXXXXXXXXXXXXXXX

 

 

 

XXXXXXXXXXXXXXXX

Defendants

 

 

Defence

 

 

 

• I, X of the Family name am the defendant in this case and litigant in person and I make this statement in support of mine and my wife’s defence (XXXXX of the family name : XXXXX) to the Particulars of Claim on the N1 CPC Claim form.
  
• I make this statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.
  

The Need for a Default notice

21. Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the Default Notice must be in the prescribed form and the associated regulations say what that form is.

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

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."

 

3. Practice Direction[/font]

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:-[/font]

(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

 

4. Further to point 22 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 2nd class post (or other service which provides for delivery on the next business day) is deemed to be “served” The fourth day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

5. The Default notice supplied by the Claimant is dated Wednesday 7th Jan 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 4 working days were required to allow for 2nd Class postage. Thus the Rectify date should be 14 calendar days after Tuesday 13th January 2009, namely Tuesday 27th January 2009, not Monday 26th January 2009 as clearly stated on the Default Notice.

 

6. 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).

 

7. 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.

 

8.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). Which states;

 

“(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain

a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.”

 

The Act above, sets out via Section 88(10A), that the Default Notice must contain ‘A statement in the following form --‘ which states;

 

“This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.” --

 

As the above-prescribed paragraph was completely left out of the default notice but the other prescribed parts that are required are all there, it leads me to believe that this was a deliberate attempt to deprive me of a source of much needed help. Since this information is not on the Default Notice, I was not aware that I should contact them to get a copy, and a copy was not enclosed in the original paperwork.

 

9. 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).

 

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) 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.

 

11. 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…

 

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

 

13. 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.

 

14. 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, and did not contain the required statements in the form of Paragraph 10A.

 

15. 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.

 

16. 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.

 

17. 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.

 

18. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.)

 

19.I do not dispute that the claimant has ended the agreement, the fact of the matter is, that the claimant has prematurely ended the agreement by going to court to secure the full amount of the loan, and claiming monies not yet owed, (as stated in the Particulars of Claim Form N1 CPC) without first issuing a valid default notice and by doing so has given up his rights to make a claim under section 87 of the consumer credit act 1974.

 

Please feel free to tear it up, add/delete,point out mistakes etc.,.....as my head is now all over the place:confused:

Thanks again everyone!

Edited March 25, 2010 by Worsteve
FONTS WERE ALL OVER THE PLACE!

[cymruambyth]

You need to repost withourt the fonts, much easier said than done!

I think it depends on which word you are using and when you post you need to press the edit box A in a box on top right corner. I find I press lots of times before I get it right

[Worsteve]

Cor Lumey!! That was a painful exercise! Still, after deleting all the fonts, I have managed to get it written down.

 

Thanks for the heads up!!!

[diddydicky]

if there are two separate actions against you and you wife- i think you will need to do separate statements

 

i cant see how you can make a statement which refers to a separate action to that which you submit the statement in!!

[summerbreeze]

Hi Worsteve

Please check your paragraph 4 as I dont think CPR 6 mentions service via second class post ...only first class.

It does define business days though as not including Saturdays and Sundays .

Its my thinking that the CPR does not mention service by second class post as its not a suitable or reliable method to serve documents.

 

Also the CPR rules for service of documents are normally used once litigation has commenced.

 

A DN has to be served before commencement of litigation so the the service of the DN would be covered by the Interpretation Act 1978 and the Practice Direction 1985.

 

Good luck !

[Worsteve]

if there are two separate actions against you and you wife- i think you will need to do separate statements

 

i cant see how you can make a statement which refers to a separate action to that which you submit the statement in!!

 

Hello Diddydicky

 

we were both issued with identical DN's and separate N1 CPC forms. Only one CCj was entered against the both of us. I guess I could use exactly the same statemnt but with our respective names? Can anybody enlighten me on that?

 

Please check your paragraph 4 as I dont think CPR 6 mentions service via second class post ...only first class.

It does define business days though as not including Saturdays and Sundays .

Its my thinking that the CPR does not mention service by second class post as its not a suitable or reliable method to serve documents.

 

Also the CPR rules for service of documents are normally used once litigation has commenced.

 

A DN has to be served before commencement of litigation so the the service of the DN would be covered by the Interpretation Act 1978 and the Practice Direction 1985.

 

I will have to get that checked out. I bought the Small Claims procedure book advertised on here...but it hasn't turned up yet. Any takers on that one?:idea:

 

Many thanks

[welshperson3]

IN THE xxxxx County Court

 

 

Claim No: xxxxx

 

BETWEEN:

 

XXXXXXXXXXXXXXXXXXXX

 

Claimant

 

And

 

 

 

XXXXXXXXXXXXXXXX

 

 

 

XXXXXXXXXXXXXXXX

Defendants

 

 

Defence

 

 

 

• I, X of the Family name am the defendant in this case and litigant in person and I make this statement in support of mine and my wife’s defence (XXXXX of the family name : XXXXX) to the Particulars of Claim on the N1 CPC Claim form.
  
• I make this statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.
  

The Need for a Default notice

21. Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the Default Notice must be in the prescribed form and the associated regulations say what that form is.

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

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."

 

3. Practice Direction[/font]

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:-[/font]

(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

 

4. Further to point 22 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

what is point 22

 

Under CPR 6.26 2nd class post (or other service which provides for delivery on the next business day) is deemed to be “served” The fourth day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

5. The Default notice supplied by the Claimant is dated Wednesday 7th Jan 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 4 working days were required to allow for 2nd Class postage. Thus the Rectify date should be 14 calendar days after Tuesday 13th January 2009, namely Tuesday 27th January 2009, not Monday 26th January 2009 as clearly stated on the Default Notice.

 

6. 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).

 

7. 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.

can you answer what is in the above case that shows the need for a DN And why you should get damages

 

8.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). Which states;

 

“(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain

a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.”

 

The Act above, sets out via Section 88(10A), that the Default Notice must contain ‘A statement in the following form --‘ which states;

 

“This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.” --

 

As the above-prescribed paragraph was completely left out of the default notice but the other prescribed parts that are required are all there, it leads me to believe that this was a deliberate attempt to deprive me of a source of much needed help. Since this information is not on the Default Notice, I was not aware that I should contact them to get a copy, and a copy was not enclosed in the original paperwork.

 

9. 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).

 

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) 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.

 

11. 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…

 

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

 

13. 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.

 

14. 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, and did not contain the required statements in the form of Paragraph 10A.

 

15. 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.

 

16. 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.

 

17. 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.

 

18. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.)

 

be sure you can argue the above point or the judge might just say that he agrement is still active

 

19.I do not dispute that the claimant has ended the agreement, the fact of the matter is, that the claimant has prematurely ended the agreement by going to court to secure the full amount of the loan, and claiming monies not yet owed, (as stated in the Particulars of Claim Form N1 CPC) without first issuing a valid default notice and by doing so has given up his rights to make a claim under section 87 of the consumer credit act 1974.

 

Please feel free to tear it up, add/delete,point out mistakes etc.,.....as my head is now all over the place:confused:

Thanks again everyone!

 

 

print off the bits in red and learn them you will need to now then in court.

the blue is self explanatory

 

wp3

[welshperson3]

if it is a joint claim just make sure that at the top were you say defendant put both names

[summerbreeze]

Hi Worsteve

this is copied from CPR 6

II SERVICE OF THE CLAIM FORM IN THE JURISDICTION

 

Methods of service

 

6.3

 

(1) A claim form may be served by any of the following methods –

(a) personal service in accordance with rule 6.5;

 

(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction A supplementing this Part;

 

© leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;

 

(d) fax or other means of electronic communication in accordance with Practice Direction A supplementing this Part; or

 

(e) any method authorised by the court under rule 6.15.

[Worsteve]

Thank you all so very much. When I win my case and get my damages, I will be making a substantial donation to this cause.

 

I really cannot express my most sincere gratitude and thanks to each and everyone of you, for all your expertise, time and honest help.

 

You are all angels and both me and my wife are eternally grateful.

 

I will amend my defence as necessary, and submit it before the deadline.

 

Thank you so very much.

 

Regards:D

p.s. I have another 5 loans and cards to go at after this!!!

 

if your defense is only related to the faulty DN then all your argument is that they have no rights in court,

 

basic plan of attack for court.

 

1 show that DN is invalid (prove why its invalid)

 

2 show why without VALID DN claimant has no right bringing claim

 

3 ask judge to throw it out

 

4 judge throws out claim

 

5 ask for your costs

 

6 go home and get drunk

 

wp3

 

Hi WP3

assuming the above, should I put in my defence a statement to say that I ask the judge to strike out the claimants claim? I am just reading all this again before I post it today.

 

Many Thanks

[freethemice]

you cant go for the strike out after the set aside you have to answer the claim.

 

your argument is that the claimant has no right to bring this claim before the court.

 

your reasons are that before a creditor has any right to bring a claim before the court they have to issue a valid default notice.

as they have not issued a valid DN then then they have no right to be brining this claim before the court

 

if you can show that the DN is faulty then they have no rights brining this claim and the judge will have to throw it out.

 

wp3

 

Is this still the case when the other side doesn't keep a copy of the default notice and intends to claim using witness evidence?

[Worsteve]

Is this still the case when the other side doesn't keep a copy of the default notice and intends to claim using witness evidence?

 

Regarding your comments above...I honestly don't know. The other side said they couldn't find any paperwork pertaining my case????.......and I was nice enough to give them a copy of my invalid DN. I am sure they can find someone to sign an Affadavit to say that it had been posted 1st class.....though I am not sure what kind of weight it holds. If they turn up to court with nothing other than my copy of the DN, (and I am still waiting for my SAR to come back) then I can only assume that they will be in hot water. Since the DN is missing important prescribed text, it is still invalid even though the dates may be okay. Really great point however. Don't know if anybody here can answer that?

 

no,

 

 

95% of creditors do not produce a second hard copy of the DN and this seems to have been accepted by the courts

 

provided they show a computer entry that shows a DN being issued (some also show the balance and the arrears amopunt on the sc reen print) the court will accept that evidence, with a witness statement as proof of the DN having been produced

 

A witness statement confirming it has been posted is then all that is required.

 

if they are claiming first class posting and you are disputing that then a sworn affidavit will be required

 

the lack of the prescribed text ON IT'S OWN will be a lottery in court- (shouldn't be but that's life) ideally the DN needs other faults.

 

Thanks DD

I have just been through other correspondence from RBS and they all use UKMail with a post stamp showing a Big 'S' and C9 10006 underneath. I believe that it shows that it is posted 2nd class and my defence has put them to strict proof of claim of its postage. I agree it is a lottery......still I am where I am. It is a faulty DN, and we will have to see if the judge rules the defendants or claimants way.

[diddydicky]

Is this still the case when the other side doesn't keep a copy of the default notice and intends to claim using witness evidence?

 

no,

 

 

95% of creditors do not produce a second hard copy of the DN and this seems to have been accepted by the courts

 

provided they show a computer entry that shows a DN being issued (some also show the balance and the arrears amopunt on the sc reen print) the court will accept that evidence, with a witness statement as proof of the DN having been produced

 

A witness statement confirming it has been posted is then all that is required.

 

if they are claiming first class posting and you are disputing that then a sworn affidavit will be required

 

the lack of the prescribed text ON IT'S OWN will be a lottery in court- (shouldn't be but that's life) ideally the DN needs other faults.

[welshperson3]

Hi WP3

assuming the above, should I put in my defense a statement to say that I ask the judge to strike out the claimants claim? I am just reading all this again before I post it today.

 

Many Thanks

 

A strike out is what you would ask for if this is the first time the case went to court, you would ask the court to strike out the claim on the grounds that they had no right to bring it in the first place.

by applying to the court before the hearing date and showing the claimant has no rights

effectively having the claim dismissed before it Even gets to court.

 

After a set aside you don't have the right to go for a strike out.

the argument is the same whether you were going for a strike out or answering the claim. answering the claim just means you get judgment in your favor.( a judgment)

 

a strike out is were the claim is thrown out (no claim to answer so no judgment)

 

wp3

[diddydicky]

Thanks DD

I have just been through other correspondence from RBS and they all use UKMail with a post stamp showing a Big 'S' and C9 10006 underneath. I believe that it shows that it is posted 2nd class and my defence has put them to strict proof of claim of its postage. I agree it is a lottery......still I am where I am. It is a faulty DN, and we will have to see if the judge rules the defendants or claimants way.

 

that uk mailing will be deemed second class- it does not even enter the royal mail system until the day after it is collected by UK mail (and they dont collect on sats/suns)

[freethemice]

Would 'witness statements' from other caggers providing copies of what would have been the Halifax's default notice be any good. It is clear from reading these forums that they all used to give less than 14 days until a point last year when they became compliant but then they terminated them early.

Just seems odd that if you genuinely haven't receaved a default notice you have a weaker case.

Have to admit it is tempting to 'reconstruct' what it would have looked like!

[Worsteve]

Hello everyone,

 

I have just received a letter from the opposition Solicitor, stating the following;

'We have now received your Defence however we have noted that your Defence has not been verified with a statement of truth. In the circumstances we would request that you file at Court and serve on us a further copy of your Defence duly verified with a statement of truth. We enclose for yor reference a copy of CPR16.5 which states that Defences must be verified with a statement of truth. We also enclose CPR22 which holds further information on the statement of truth.'

 

I am guessing they are right. Where do I get a statement verified?

Many Thanks

[gh2008]

Let me topeka that for you

 

they've sold out - it used to be Google

 

stick it in Google and the first result is the one you want - (Compact Law)

 

May have something to do with the date .....

Edited April 1, 2010 by gh2008
lmgtfy.com sold out :(

[cymruambyth]

Hi you need to end your defence with:

 

Statement of Truth

 

I, XXXX, believe the above statement to be true and factual.

 

 

Signed

 

Date

[Worsteve]

Let me topeka that for you

 

they've sold out - it used to be Google

 

stick it in Google and the first result is the one you want - (Compact Law)

 

May have something to do with the date .....

 

Ha ha!!! Love that little link you did there! I am hoping that as I sen the defence out on time, but failed to get it verified, tht they will still accept it...... Hopefully it will be okay. I have sent it off recorded delivery and taken it to the court as well.

 

On another note, I put this statment in my defence:

"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." I put this statement in my defence and I am unsure as to how I can argue it. Can I retract this statement, or can anybody here help me to understand how to prove this?

 

Regards to one and all!

 

BUMP!!!

 

I just want to see how I can defend the above statement on arrears before I resubmit my defence to the Sols and the court today.

 

Many Thanks

[MandM]

I think the statement refers to the arrears total shown on the DN. The total on the DN needs to be accurate and refer to arrears only i.e. if you missed 2 months payments of say £150, then the DN should be for £300

 

Not 2 x £150 PLUS 2 late payment charges for £30 each, PLUS £15 admin for sending out a letter = £375 instead of £300. Make sense?

 

M

[Worsteve]

Makes complete sense to me! I will continue to file the defence as before and I can mention that in court.

 

Brilliant M&M! Much appreciated!

[MandM]

Have you looked at the figure on the DN and agree/disagree with it? You need to be able to demonstrate it if you can.

 

M

[Worsteve]

Have you looked at the figure on the DN and agree/disagree with it? You need to be able to demonstrate it if you can.

 

I have not checked it out yet. I have only recently applied for the SAR and Data Protection documents. A claims company applied for it in September last year and RBS have given them the runaround, so I have taken it upon myself to get it from them. I don't seem to think they have much information as that is what there sols said in court that they couldn't find any paperwork pertaining my case.....

 

If they haven't then they are claiming arrears that they can't prove so my statement will stand rather nicely!