65yrs old pensioner on benefits - Nelson Guest\Court Papers/Lloyds OD - ***Claim Dismissed***

[BRIGADIER2JCS]

Sorry too small to read.

[sytra]

sorry cant get image to upload properly

See if this works

Edited February 21, 2013 by sytra
cant read

[BankFodder]

Yes this is correct, she just feels that she has been unfairly treated by the bank, on 2 occassions they promised to look into the hardship, on both occassions they never responded until a DC letter turned up a few months later.

 

 

All she has had is the odd letter from various DC'c offering a time limited discount or a few letters telling her to contact them (the DC's that is), all basically saying that they see no reason why payment cant be made

 

 

 

I have already told her i would be there, although not sure how much help i would be

 

I think that you have to say something like

Please keep us informed at every step. If the bank attempts to involve you in some confidential communication or offer you some settlement subject to confidentiality. Do not accept this. Contact us.

The bank may decide to withdraw the action. Do not accept this. You must have a discharge of any alleged debt. Accept nothing less.

We'll deal with the money owing to you later on.

 

 

I think that there might be a problem.

 

I have discovered this:-

http://www.consumeractiongroup.co.uk/forum/showthread.php?208195-HSBC-Social-Security-Administration-act-1992

[sytra]

Maybe she will have to try and amend her defence somehow

[AndyOrch]

Hi sytra

 

Could you possibly confirm did you submit the defence suggested by Bankfodder? Could you provide details of what you included in your AQ (N149).

 

Regards

 

Andy

[sytra]

If you get the chance please could someone take a look at the default notice on page 1 to see if there are any faults on there, the bit i saw that i am not sure about is this "What do i need to do to correct this? - You must pay us £xxx.xx by 17th September 2008 plus interest which is accruing daily, directly to your Lloyds TSB Branch. The due amount is based on the account balance today, receipt of any further debits or credit or a variation in the interest rate will result in amendment to the amount payable."

 

Am i correct that a DN has to be specific in the amount payable to remedy, in which case by saying pay XXX plus interest and that basically an amendment to the amount due may happen they have gone against this?

 

Just looking for any ammo i can find now to try and get this sorted

 

thanks

[sytra]

Hi sytra

 

Could you possibly confirm did you submit the defence suggested by Bankfodder? Could you provide details of what you included in your AQ (N149).

 

Regards

 

Andy

 

Hi yes i did use the defence offered, and the AQ was answered as follows:

Mediation Settlement (Y),

Location of Hearing (Y)(due to disability so requested local court),

Track Small Claims (Y),

Witness (0),

Experts (No to all),

Hearing (Y) put the date she cant do, and no to interpreter,

Other information: Basically the same as the defence and listed all benefits and relevant dates of the benefits.

Fee (N)

[AndyOrch]

Ok, update, this case has now been transfered to my mothers local court and she has a date of 9th April. I will scan a copy of the directions that were sent with the allocation paperwork.

 

One thing i have just thought about, don't know if it will make any difference but in the claim they state the monies are owed under a credit agreement and account #xxxxx. Its a Current Account I assume with either an authorised or unauthorised Overdraft so it is a form of credit agreement but exempt from the CCA1974 PT V

 

As this was a bank account that went overdrawn then it's not a credit agreement is it? See above also the account number does not match the one that was on the account which is why it took a while to figure out which acc it was, the number changed on one of the letters that was sent when the account was first defaulted.

The account number may vary slightly once it is moved to collections or through assignments to third parties

 

If you get the chance please could someone take a look at the default notice on page 1 to see if there are any faults on there, the bit i saw that i am not sure about is this "What do i need to do to correct this? - You must pay us £xxx.xx by 17th September 2008 plus interest which is accruing daily, directly to your Lloyds TSB Branch. The due amount is based on the account balance today, receipt of any further debits or credit or a variation in the interest rate will result in amendment to the amount payable."

 

The whole Default Notice is in correct nor valid default notices (if you wish to call them that ) are Demand Notices/Termination Notices on Overdraft/Current Accounts and should be headed as Notice Served Under Sections 76(1) and 98(1) of the CCA 1974.What you have been served is a normal Default Notice as per Credit card/Personal Loan

Am i correct that a DN has to be specific in the amount payable to remedy, in which case by saying pay XXX plus interest and that basically an amendment to the amount due may happen they have gone against this? Invalid anyway see above Thee Demand Notice Termination should request the whole of the Overdraft (authorised or unauthorised) amount within a specified period or Invite you put forward your proposals of payment.

Just looking for any ammo i can find now to try and get this sorted

 

thanks

 

Try to stay calm sytra allocation is a normal part of the process and the directions must be followed by the date stated.You dont need to amend the defence you will have opportunity within your Witness Statement to add further argument.

 

Regards

 

Andy

[sytra]

Many thanks Andy, just panicking as never had to go to court to defend a claim (and as it is mothers don't want to mess up).

[AndyOrch]

No problem give your thread a bump as you approach your first Direction (should be exchange Witness Statements) allow a few days.

 

Regards

 

Andy

[sytra]

Ok, I think i need to start the WS rolling now, only got about 3 weeks before it has to be in at the court and with Nelson Guest. please can someone advise me on what i should include (and how it should be written), i see that the small claims limit has been increased from April so do you think we could somehow now include the charges that were mentioned in an earlier post as they amount to over 6k inc interest?

[sytra]

Sorry, just giving a little bump

[AndyOrch]

Ok, I think i need to start the WS rolling now, only got about 3 weeks before it has to be in at the court and with Nelson Guest. please can someone advise me on what i should include (and how it should be written),see below an example i see that the small claims limit has been increased from April so do you think we could somehow now include the charges that were mentioned in an earlier post as they amount to over 6k inc interest?

 

The changes to the CPR and SCT threshold are not retrospective and only apply to claims issued after the 1st April 2013.

 

You can refer to case law and that should be done by way of exhibit

 

 

Witness Statement

 

 

1 I xxxxxxxxxxx the defendant in this claim make the following statement in support of my defence of claim no xxxxxxxxx.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial .

 

Date: xx xxxx 2013

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

 

Regards

 

Andy

[sytra]

Ok, i have had a go at the WS, please can someone take a look at it and let me know if you think it is ok, the bits in red are what i am unsure about, so if you could give me some advice on the correct way to word them and the correct section numbers i would be grateful:

 

Witness Statement

 

 

1 I XXXX XXXX the defendant in this claim make the following statement in support of my defence of claim no XXXXXXX.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract as confirmed on the claim form.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that Under Sections 76(1) and 98(1) of the CCA 1974 (The Act) the creditor must deliver a Termination notice which complies with all of the requirement of Section XX of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no termination notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 In any event, the Default notice that was served is non compliant not least the notice that was served, was served under s87(1), the format for normal credit or personal loan accounts and not the correct form for a current account.

 

6 I therefore put the Claimant to strict proof that any Default Notice sent to me was valid, 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 a document is laid down in the 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 If the claimant decides that the default notice that was served is valid and the claim should proceed using the s87(1) then:

 

8 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).

 

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.

 

9 For a Creditor to be entitled to terminate an 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.

 

10 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…

 

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

 

12 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.

 

13 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 specify an accurate figure to remedy the breach, instead I was supposed to guess the amount needed to remedy.

 

 

14 In either case the Claimant’s failure to issue a valid Default Notice either under s76(1) OR s87(1) 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.

 

15 This was 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 78, 87, 88 and section 98 if they are to lawfully Default and Terminate, and enjoy the benefits of Sections 78, 87, 88 or 98.

 

16 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 before this claim was made before me. 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 XX namely the opportunity to seek early payment of a sum that was, prior to termination, only payable in the future.

 

17 The claimant claims £XX XX . I refute this is payable. This amount is default charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

18 Prior to bringing this claim against me, Lloyds were informed that all the charges were being taken from benefit payments, and on two occasions said that they would be investigated but Lloyds used the The Office of Fair Trading v Abbey National PLC and others (2009) as an excuse to place my claim on hold and as a result failed to investigate my concerns.

 

19 I do not admit that I am in debt to the defendant, at all relevant times I have been in receipt of BENEFITS HERE, The sum referred to by the claimant in their claim is comprised of charges applied to my account and which are void by virtue s.187 Social Security Administration Act 1992. By seeking to appropriate the defendants benefits the claimant is treating her unfairly and in breach of their statutory duty contained in the Banking:Conduct of Business Regulations 2009, made under the Financial Services and Markets Act 2000.

 

20 187(1) Subject to the provision of this Act, (Social Security Administration Act 1992) every assignment of or charge on–

(a) benefit as defined in section 122 of the Contributions and Benefits Act;

and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.

 

21 After filing my defence on the 5th December, I received a letter from Wescot on the 12th December 2012 advising me that they had got a CCJ by default and that I should call them to make the payment to avoid the CCJ being registered, after calling the court to find out if this was correct, the court advised that they had not got the CCJ and that I should keep the letter to use as evidence. I feel that the claimants letter is intimidating and is trying to take advantage of my position as a litigant in person.

 

22 The claimant failed to respond to the original AQ and had to have a court order to make them submit.

 

23 I as a litigant in person have done everything that was requested from me, in the time scale ordered by the courts, however, a large financial institution with the backing that is not afforded to myself has failed to comply on at least one occasion and has made a joke of the judicial system that they used.

 

24 If the court is in agreement then I respectfully request that this claim be struck out as the failure of a valid default notice means that the claim should never have been brought in front of a court in the first place.

 

25 Alternatively in the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

 

Date: xx xxxx 2013

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

Edited March 12, 2013 by sytra
Added info

[AndyOrch]

Legislation covering Overdrafts :-

 

http://www.legislation.gov.uk/ukpga/1974/39/part/VA

 

Regards

 

Andy

[AndyOrch]

Legislation covering s140A Unfair Relationships:-

 

Unfair relationships

 

The Consumer Credit Act 1974 enables borrowers to challenge unfair credit agreements in court and obtain redress, if the overall relationship is unfair to the borrower.

 

This is in addition to consumers being able to take disputes to the Financial Ombudsman Service (FOS)

 

 

The introduction of provisions

 

The provisions were introduced by the Consumer Credit Act 2006. They applied to new agreements from 6 April 2007, and to pre-existing agreements from 6 April 2008. Agreements completed before the new provisions took effect remain subject to the previous extortionate credit bargains provisions.

 

The 2006 Act also enhanced the right to apply for a time order, which is a court procedure that can give borrowers more time to repay a debt.

 

 

The unfair relationships provisions

 

Section 140A of the 1974 Act provides that a court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:

 

any of the terms of the credit agreement or a related agreement

the way in which the lender has exercised or enforced its rights under the credit agreement or a related agreement, or

any other thing done (or not done) by or on behalf of the lender either before or after the making of the credit agreement or a related agreement.

The courts have a wide range of powers where a credit relationship is found to be unfair, including:

 

altering the terms of the credit agreement or a related agreement

reducing the amount payable by the borrower

requiring the lender to refund money to the borrower

removing any duty placed on the borrower under the agreement, and

imposing requirements on the lender or an associate.

 

In addition, where unfair relationships harm the collective interests of consumers, the OFT and other enforcers (including Local Authority Trading Standards services) can take enforcement action under Part 8 of the Enterprise Act 2002.

[sytra]

Any one got an idea where i can find where it states this

"Under FSA BCOB's they have to treat you fairly and a charge (which takes you overdrawn) can not attract other unauthorised borrowing charges (technically they authorised this borrowing by adding a charge which they knew would result in a negative balance"

 

I saw this in another thread and looked at the FSA BCOB's but couldn't see it, probably just being blind

[AndyOrch]

Take a look here sytra in particular section 5.10 :- http://www.bsa.org.uk/docs/BCOBS_INDUSTRY_GUIDANCE_MAY2010.pdf

 

Regards

 

Andy

[sytra]

Thanks for all your help Andy, makes things easier when you have someone to direct you

[sytra]

Sorry, still working on the WS, but the court orders say to deliver to court and claimant no later than 14 days before the hearing, I was working on the assumption that it is 14 calender days but someone told me today it should be working days.

[sytra]

Bump, and going through the paperwork i have got and i came across the Enforcement notice 76(1), in it, it states that Lloyds intend to terminate the account on 20/8 but then the default 87(1) is dated 30/8 so 10 days post termination.

 

My question is, i have read somewhere that the default can't be dated post termination as that way there is no account to terminate. is this correct?? so in effect the default is void in yet another way?

 

Also does any one know the correct prescribed form for the 76(1) notice all i could find is the regulations saying it must be in the prescribed form

[AndyOrch]

Hi sytra

 

Because this is an overdraft a default notice served under sec 87(1) is not applicable........ Notice served under section 76(1) and 98 (1) is the correct procedure.The only real prescribed terms are the amount be accurate the names and address of both parties and that 14 days be allowed to offer your proposals of payment and that they are acceptable by the bank...failure will then result in the recall and termination of said Overdraft.

[sytra]

Legislation covering Overdrafts :-

 

http://www.legislation.gov.uk/ukpga/1974/39/part/VA

 

Regards

 

Andy

Hi Andy,

 

Sorry but i thought by reading the legislation above, the account, by Lloyds allowing it to go over it's limit it became a regulated agreement hence the 87(1), s74A(1)(b) if the account-holder did so, this would become a regulated consumer credit agreement

[sytra]

Also have discovered that, the enforcement notice 76(1) is dated 11/8 saying agreement will be terminated on 20/8 then they issued a 87(1) (that may be completely wrong anyway) on 30/8 giving until 17/9 to rectify. however have found out now that they were taking the account charges £12pm for a few months after the account was supposed to have been terminated

[sytra]

Also have discovered that, the enforcement notice 76(1) is dated 11/8 saying agreement will be terminated on 20/8

 

Just realised, you say that the enforcement notice has to give 14 days, then this one just by the dates on the notice only give 9. So am i correct in thinking that this is invalid too?