HFC/Reston - I Broke Tomlin - now Judgement for Claimant (in default)

[pedross]

Hi Pipster

 

They are claiming it was on the back of the application form but there is nothing on the front stating that the T & C are on the back. In view of the fact that they almost certainly do not have the original they will have to convince the court that it was indeed on the back. I can see nothing to connect the two documents. Not strong for you, but its a start.

 

Next, in the charges section do the interest rates exactly match the rates that you were given when you first had the card. 0% for 6 months and 14.9% apr afterwards (1.16% p month) + check the cash figures etc.

 

Finally, the DN is defective and prevents them from obtaining a judgement.

 

You need to stay confident. Your defence let you down and you were not prepared with the answers when you got to court. You did not fully understand all the issues you included in the defence.

 

In answer to your question, you should have said what I have just explained in my first paragraph and asked the judge to order the original to be produced in court.

 

You need to get it spot on next time and understand what it all means.

 

Easy.

 

Pedross

[Pipster2797]

Thanks Pedross. I did say to the judge though that I wasn't sure that was on the back as they could of changed anything. He said if I was to doubt it it would go to trial and the costs would run highly and therefor I need to be sure.

 

With regards to the charges I am unsure of what I have been charged. I have requested the statements and they have 14 days to produce them to me.

 

I'm a bit thrown after my first defence and unsure of how to trim it down shall we say. I'm unsure of how long it should be. My first defence was made after alot of reading and I thought I was doing it all right

[Perdita]

Hi Pipster

 

Sorry it didnt go too well for you on Friday. In my VERY limited experience I have learnt to make the defence as simple as possible and in laymans terms. Stick to the points and dont get too bogged down in references to cases as anything you put in your defence youy may need to argue about it in court. If you have a look back at my thread that you have subbed to and see my original defence and then post 36 you will see Andyorch simplified it very much for me.

Good luck, I will keep watching

 

P

[Pipster2797]

Thanks Perdita I will have a good read of your thread

[Pipster2797]

can anyone help as I'm trying to finish my defence and get it posted up.

 

Should I say something about the front and the back of the CCA not being on the same peice of paper or is it a total no go no after what the judge had said.

 

Also he mentioned a few times about the manchester test case and I should be lookin at that but Ive read the thread and unsure what he means by it. Can anyone help at all?

[Pipster2797]

I'm trying to get the defence sorted but I do feel out of my league now and unsure how to put together an amended defence.

 

Perdita's thread seems to be the best thread (http://www.consumeractiongroup.co.uk/forum/legal-issues/167755-me-restons-discontinued-2.html) that I have read but I'm unsure of how to defend this now and would really appreciate any help with this.

 

I think my defence should contain

 

1. The CCA being on 2 seperate sheets and its a copy and that the original should be brought forward to prove they were on one document

2. The DN being defective

3. The POC being vague and having a collection charge on it

4. The account being terminated after the a defective DN being served not giving me enough time to remedy it.

5. Charges on the account too.

 

I would appreciate any help as I am starting to struggle to get the defence sorted for this case.

 

Thanks

Pipster

[citizenB]

I'm trying to get the defence sorted but I do feel out of my league now and unsure how to put together an amended defence.

 

Perdita's thread seems to be the best thread (http://www.consumeractiongroup.co.uk/forum/legal-issues/167755-me-restons-discontinued-2.html) that I have read but I'm unsure of how to defend this now and would really appreciate any help with this.

 

I think my defence should contain

 

1. The CCA being on 2 seperate sheets and its a copy and that the original should be brought forward to prove they were on one document

2. The DN being defective

3. The POC being vague and having a collection charge on it

4. The account being terminated after the a defective DN being served not giving me enough time to remedy it.

5. Charges on the account too.

 

I would appreciate any help as I am starting to struggle to get the defence sorted for this case.

 

Thanks

Pipster

 

So this is an amended defence that you need to produce and by when ?

 

Those points listed are all good. I will have a quick read back over your thread to see if you have missed anything.

[Pipster2797]

thanks again CB, it is an amended defence and needs to be in by this friday coming.

 

I have tried to put together a new defence but I'm struggling and too be honest haven't really wanted to post as don't want people to think I'm not reading up. I am. I havent done anything else but after the first hearing I feel out of my league.

[citizenB]

Your main defence is the Default Notice. Dated 17th July 2009 (which was a Friday). Remedy date is BEFORE 3rd August 2009

 

Dependant on whether it was sent 1st, 2nd or UK/TNT mail :

 

1st = 22nd = 11 days

2nd = 24rd = 09days.

 

If this was posted via UK/TNT then it is quite likely it wasnt even collected until the Monday because as far as I know they dont collect at the weekends.

 

NOTE: One thing I have just noticed from the Default notice is the amount they have claimed as "Total Arrears" = £1308.81.

 

The POC is claiming :

 

Default Balance = £1308.81

Then they have made up the Total claimed of £1565.08 by adding collection charges (which they arent allowed to do) and interest. If that is s69 interest then they arent allowed to claim that either.

 

However, my point is : If the amount of £1308.81 represents the TOTAL outstanding balance, then they have asked for the whole balance and not just arrears on the DN, which they ARE NOT allowed to do. They can only claim arrears !!

 

Pedross, robcag, anyone.. HELP.. !!!

 

I have used your original defence as the basis for the following. You will need to have further input from those mentioned above and almost certainly what I have put below is not complete. Obviously you will need to amend the point numbers. Make sure where you refer to one paragraph in another that those reference numbers are also amended.

 

I do not know whether you should continue to claim that the POCs were vague. They are and are obviously incorrect.

 

I would suggest you pm Pedross and robcag, perhaps even foolishgirl and vint1954. Give them a link to your thread and ask for input/comments

 

 

 

 

 

 

 

 

In the XXXXXXX county court

Claim number – XXXXXXXX

 

 

 

 

 

 

Between

XXXXXXXX - Claimant

 

 

and

 

 

XXXXXXX - Defendant

 

 

 

 

 

Amended Defence

 

 

I, XXXXXXXXXXXXXXXXXXXXX of XXXXXXXXXXXXXXXXX, am the Defendant in this action and make the following statement as my defence to the claim made by HFC Bank Ltd.

 

1: This amended defence replaces the original dated (DATE OF FIRST DEFENCE) in its entirity as ordered by District Judge XXXX on (DATE OF FIRST HEARING)

 

2. The Defendant admits applying for a credit card account with HFC Bank Limited and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

 

 

 

The Request for Disclosure

 

I think you can put a short paragraph detailing how you attempted to obtain information and Restons have basically told you to get stuffed.

 

The Credit Agreement

 

IMHO you could point out that there is no connection between the two pages ie nothing to say on the front page that anything was on the back . Does it say anywhere that terms and conditions are enclosed. I fear I unable to read those docs posted as the print is too tiny.

 

Does it say what charges they would apply for late/non payment ie £12.00 or £25.00 if the lower amount then almost certainly if the account was opened in 2004 and the T&Cs should state the higher.

 

 

 

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

 

21. 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.

 

22. 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."

 

23. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

24. 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 First class post (or other service which provides for delivery on the next business day) is deemed to be "served" The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

25. The Default notice supplied by the Claimant is dated Friday 17th July 2009, to allow service in line with the statutory requirements mentioned in points 21 & 23 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 22nd July 2009, namely Wednesday 5th August 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 3rd August 2009.

 

26. 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).

 

27. 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.

 

28. 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).

 

29. 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.

 

30. 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…

 

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

 

32. 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.

 

33. 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.

 

34. 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.

 

35. 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.

 

36. 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.

 

37. 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.

 

38. The Particulars of Claim show an amount of £218.17 identified as "Collection Charge" . This is is an Unfair practice as per the OFT Guidelines on debt collection Guidance.

http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf

 

 

 

Charging for debt collection

 

 

 

 

2.9 Charges should not be levied unfairly.

 

 

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express contractual or other legal provision

 

 

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision

 

 

c. not giving an indication in credit agreements of the amount of any charges payable on default

 

 

d. applying unreasonable charges, for example, charges not based on actual and necessary costs

 

 

e. applying charges which are disproportionate to the main debt.

 

Conclusion

 

 

39. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

40. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

41. As laid out in point 19 and 26 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

42. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

43. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

 

 

Signed .....................

 

Date 19th October 2009

　

 

It is understandable that you are feeling pretty despondent.. but you cant afford to give in now. I believe you have a strong defence as regards the Default Notice. Pm those mentioned above and see if they can also offer some advice.

 

If you also pop up your own thoughts that would be useful.

 

Chin up

[pedross]

Hi Pipster

 

You need to concentrate on points 1 & 2

 

The judge will not be interested in the POC being vague in my opinion, but you can point out the collection charge is not allowed under OFT rules I believe, you need to find that information.

 

4. is the same as 2

 

5. if you want to mention the charges briefly you should include it in the DN argument but the case will not be decided on them, it will be decided on 1 & 2.

 

1. The judge has mentioned the manchester cases (MC) so you need to refer to them in your favour, be familiar with the transcript and take copies with you. I forget the numbers of the paragraphs I have in mind but I will try and find them for you.

 

The main argument is that the prescribed terms must be contained in the agreement. Restons will argue that they were on the back but the original has been destroyed. In the MC it was said in regards to S78 requests that sometimes the originals may have been destroyed in a fire or some other situation.

 

In your case, although it is an important legal document, the lender has deliberately destroyed it and is expecting the court to waive any rights to request production of the original. In which case one would expect them to make sure that they retained copies that proved without reasonable doubt that they were part of the same document. There is nothing in the 2 copies you have been provided to prove that they are part of the same document and I would put Restons to strict proof that the T & C were a copy from your file and not just a copy of a file copy.

 

In the MC cases it was clearly stated that when the T & C were provided at the same time as the application form and it stated on the application form T & C attached or overleaf it would be classed as 'contained'. Your application form makes no mention of where you can find the terms and therefore using the MC they would not be contained. If they were in fact overleaf as Restons would have the court believe why does it simply not say overleaf. HFC deliberately destroyed the only actual evidence which would prove it was not there.

 

So your defence needs to say that you deny the terms were overleaf and make all the above points to support that.

 

2. The DN is a day short 1st class and you need to use your original argument. Do you have the envelope by the way, as I have never read that HFC use 1st class.

 

 

I know I have waffled but you need to cut out all the waffle from your original defence. You know what the claim is about and so does the court so the POC points etc is no use.

 

You need to win it with the DN which you should do. Your backup is the agreement.

 

Pedross

[citizenB]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

^^^^^^^^^^^^^^^^^^^^^^^^^

 

Manchester Test case. You should also find a link to the Judgement on the thread.

[pedross]

Well done CB thats the link.

 

Paragraphs 173 - 181 are relevant. 181 explains that it is sufficient to simply refer to the general terms but not the Prescribed Terms. It makes it clear how the prescribed terms should be 'contained' by being attached or overleaf and a statement on the form would incorportae those terms by a similar reference.

 

The failure of a large corporation the size of HFC to to make reference to terms that were indeed overleaf seems unbelievable unless of course they were not, in which case the absence of a reference would be logical. Luckily for the claimant the only evidence that can determine the facts has been deliberately destroyed even though it is such an important document.

 

There you go Pipster, use all the information to defend the agreement and add it into CB's excellent post and you are almost there with the defence.

 

Do you have the DN envelope?

 

Pedross

[Pipster2797]

bloody net connection has been down all day

 

Firstly thanks for the postings and it has lifted my spirits.

 

I'm going to read the Manchester thread back to front again as I think it may make more sense now actually understanding your post pedross.

 

CB with the defence you have posted firstly thanks...the judge made reference about my original defence and the fact it was so long. Should I be shorting it down or is that the right length that you have posted?

 

I will PM everyone else mentioned and hopefully get this wrapped up tomorrow and Tuesday night after work!!

 

P.S. I dont have the envelope as they never sent the original to me. The first time I seen it was when I got the response to my CPR Request!!

[vint1954]

As said before, it needs to be remembered that the Manchester Case was surrounding s78, where the debtor had the onus of proof put on them. The onus of proof is on the claimant, when you defend.

 

Looks like the best defence is the efective DN, followed by the agreement. You will need to put the claimant to strict proof that these terms were on the back of your agreement, having of course denied that they were there. As Pedros has said, there is no ref to the terms on the front sheet and I always maintain, that your signature must come after the main terms of contract.

[citizenB]

bloody net connection has been down all day

 

Firstly thanks for the postings and it has lifted my spirits.

 

I'm going to read the Manchester thread back to front again as I think it may make more sense now actually understanding your post pedross.

 

CB with the defence you have posted firstly thanks...the judge made reference about my original defence and the fact it was so long. Should I be shorting it down or is that the right length that you have posted?

 

 

P.S. I dont have the envelope as they never sent the original to me. The first time I seen it was when I got the response to my CPR Request!!

 

Hi pipster, I think once you have taken on board everything that has been said and juggled around with what I have left of the original defence, it will be very much shorter

 

As soon as you have prepared your draft, then post it up and we can take it from there.

[Pipster2797]

Thanks for everyone's help so far.

 

Here is my first draft and big thanks to CB for this. Feel free to add as many comments as possible or to add bits in or take bits away etc. Any help is much appreciated.

 

In the XXXXXXX county court

Claim number – XXXXXXXX

 

 

 

 

 

Between

XXXXXXXX - Claimant

and

XXXXXXX - Defendant

 

 

 

 

Amended Defence

 

 

I, XXXXXXXXXXXXXXXXXXXXX of XXXXXXXXXXXXXXXXX, am the Defendant in this action and make the following statement as my defence to the claim made by HFC Bank Ltd.

 

1: This amended defence replaces the original dated (DATE OF FIRST DEFENCE) in its entirity as ordered by District Judge XXXX on (DATE OF FIRST HEARING)

 

2. The Defendant admits applying for a credit card account with HFC Bank Limited and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

 

 

 

The Credit Agreement

 

3. With the credit agreement that has been supplied to me, it is a 2 page document. I believe that the 2nd page of the document was not on the back of the first page and would like to put the claimant to strict proof that this was indeed on the back of the Credit Agreement by producing the original credit agreement rather than a photocopy of 2 separate pieces of paper

 

 

 

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

 

4. 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.

 

5. 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."

 

6. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

7. Further to point 5 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

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

 

8. The Default notice supplied by the Claimant is dated Friday 17th July 2009, to allow service in line with the statutory requirements mentioned in points 4 & 6 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 22nd July 2009, namely Wednesday 5th August 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 3rd August 2009.

 

9. 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).

 

10. 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.

 

11. 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).

 

12. 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.

 

13. 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…

 

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

 

15. 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.

 

16. 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.

 

17. 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.

 

18. 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.

 

19. 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.

 

20. 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.

 

21. The Particulars of Claim show an amount of £218.17 identified as "Collection Charge". This is an Unfair practice as per the OFT Guidelines on debt collection Guidance.

http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf

 

 

Charging for debt collection

2.9 Charges should not be levied unfairly.

2.10 Examples of unfair practices are as follows:

 

a. claiming collection costs from a debtor in the absence of express contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision

c. not giving an indication in credit agreements of the amount of any charges payable on default

d. applying unreasonable charges, for example, charges not based on actual and necessary costs

e. applying charges which are disproportionate to the main debt.

Conclusion

 

23. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

24. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

25. As laid out in point 3 and 9 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

26. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

27. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

 

 

Signed .....................

 

Date 8th March 2010

 

 

Thanks Pipster

[foolishgirl]

You have mail, pipster

[Pipster2797]

cheers foolishgirl for the mail.

 

Hello to our 2 guests too.......wonder if they could be Restons

[pedross]

Hi Pipster

 

Don't worry about guests being Reston's, they will see the finished defence at some stage anyway and it makes no difference to the court how you arrived at it.

 

I think the agreement section of the defence needs work still and I will help you on it, I have been busy all over the weekend but I will try and look at it on tuesday. This is your second line of defence and the DN is your main defence remember.

 

Stay positive in your thinking, you will put a good defence in and Reston's will be aware that the risk of them losing is more than they would normally accept.

 

Pedross

[Pipster2797]

I'm going to post up my defence shortly. Just got a couple of things to sort out first

[Pipster2797]

Thanks to foolishgirl for this. Please I would appreciate anyones comments on this amended defence

 

1. I, XXXXXXXXXXXXXXXXXXXXX of XXXXXXXXXXXXXXXXX, am the Defendant in this action and make the following statement as my defence to the claim made by HFC Bank Ltd.

2. This amended defence replaces the original dated (DATE OF FIRST DEFENCE) in its entirity as ordered by District Judge XXXX on (DATE OF FIRST HEARING)

3. 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.

4. The claimants' particulars of claims is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, was not served attached to the claim form although the defendant has received a copy from the claimant as part of the trial proceedings.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, was not served attached to the claim form. The defendant applied to the Claimant for evidence of such under CPR31.14 & CPR18 on xxxx & xxxx respectively but to date the Claimant has not fully complied with those requests.

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

*The Agreement*

6. In response to the purported credit agreement supplied by the claimant, it is denied that it is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document fails entirely to comply with Consumer Credit legislation.

7. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

8. Under the Consumer Credit Act 1974 the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

9. The document supplied by the claimant was in two parts. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

10. Therefore it is submitted that this document falls foul of the Consumer Credit Act 1974 & as a result Section 127(3) prevents this document from being enforced by the court.

11. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

‘Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them’

Furthermore the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

12. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted & located here: http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

13. If the claimant is in disagreement, then it is respectfully requested that the claimant bring before the court the original signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553.

14. Should the Claimant seek to rely on the recent judgment given by HH Judge Waksman in Carey v HSBC Bank plc [2009] EWHC 3417 (QB) the courts attention is drawn to the fact that this judgment was made in respect of the argument as to whether the production of a reconstructed copy of an agreement by a creditor fulfilled the terms of S78 of the Consumer Credit Act 1974 & not in relation to whether such a reconstruction would be permitted as evidence of an enforceable agreement in court. It is therefore of no relevance to this case.

15. The court’s attention is also drawn to the requirements of CPR 16.7.3

‘Where a claim is based upon a written agreement:

1. a copy of the contract or documents constituting the agreement should be attached to or be served with the particulars of claim &* the originals should be available at the hearing’*

16. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant unenforceable.

17. Finally I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

*The requirement for a valid Default Notice *

18. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without proof that a valid default notice was properly served on the Defendant, it is suggested that the Claimant's case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

19. The Claimant is put to strict proof that any Default Notice sent to the Defendant was valid. 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. If the breach is capable of remedy, it must also specify a date not less than 14 days after the date of the service of the notice by which that action must be taken. 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). The time permitted for service of documents is specified in the Interpretation Act 1978.

20. The Default Notice produced by the Claimant demands that the full balance of the account be rectified. The Claimant was only legally entitled to demand arrears at this stage. Furthermore, the 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 sum claimed is not accurate, either in monetary amount or definition.

21. It is averred that the copy Default Notice supplied by the Claimant is defective in that it does not permit sufficient time from service to rectification & therefore does not comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

22. 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)

23. The Claimant states that this is 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 S87 and S88 if they are to lawfully default and terminate, and enjoy the benefits of Section 87. 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.

*Collection Charges*

 

24. The ‘Collection Charge’ of £218.17 is denied.

This is an unfair practice as defined by the OFT Debt Collection Guidance July 2003 (updated December 2006) Section 6:

 

‘2.9 Charges should not be levied unfairly

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision’

*Interest*

25. Interest on this account is denied as the Defendant avers that an enforceable agreement that states the terms & conditions under which any interest might be levied does not exist.

*Conclusion*

26. The Claimant’s entitlement to payment of the sum of £xxxx and to interest is denied.

27. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4:

‘(2) 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 or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order’

 

Statement of Truth

 

I xxxxx, believe the above statement to be true and factual

 

Signed Date

 

***************

 

 

[diddydicky]

personally i think that you need to "personalise events to yourself rather than submit a "template" defence

 

i would refer to what effect their DN had on you and their case - rather than just quote other cases in a "generic way"

 

for instance

 

the Default Notice demanded that in order to remedy the alleged breach of arrears amounting to XXXXXX that i should pay in full the entire outstanding balance of the account a sum of XXXXXX - which included sums not yet due under the agreement.

It was not possible for me to comply with the default notice since to do so would have defeated the purpose and intent of the consumer credit act in respect of the default notice and was an unlawful repudiation by the creditor of the agreement etc

Notwithstanding the foregoing, the default notice did not give the prescribed amount of time for me to remedy the alleged breach .............give the details of what was wrong with it and why it did not give the prescribed minimum of 14 clear days

 

 

IMO

Edited March 10, 2010 by diddydicky

[pedross]

I think it covers everything you need to say, but I think you need to cover the fact that they will say that the terms were on the back of the application form.

 

The Carey case has been mentioned, which is good, but I think that you should mention the fact that for the terms to be 'contained' they should be referred to as overleaf or attached and although the Carey case is not relevant to these proceedings, as far as enforcement is concerned, it did clarify this point.

 

Thats a brief way of stating an argument against this point.

[Pipster2797]

thanks for the replies.....how can i put this last bit in? where would it fit best into the defence?

 

between point 14 and 15? and to say something like

 

In the recent judgment given by HH Judge Waksman in Carey v HSBC Bank plc [2009] EWHC 3417 (QB) the courts attention is drawn to the fact that it was clarified that for the terms and conditions to be on the back of the agreement it must be pointed out that they are overleaf or attached.

Edited March 10, 2010 by Pipster2797

[pedross]

9. The document supplied by the claimant was in two parts. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These prescribed terms must be contained within the agreement and not simply embodied by reference. They would need to be on the signature page or referred to as overleaf or attached. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

 

Hi Pipster, I think you might add it as above. I don't really want to start changing FG's defence so it would be an idea to pm her and ask for an opinion. My idea is that by adding it as above it would give you the opportunity to explain why you stated this if it did get to court. Restons will argue that it was overleaf and you would argue the opposite. But by putting the above in the defence it is another reason for them not to take it to court because they will know you have an answer to their witness statement.