Welcome finance and Hegarty Court Claim

[postggj]

we are getting somewhere now

 

A notice under 87(1) tell the debtor that he has breached the agreement and gives him a period of 14 days to rectify the default.

If the debtor fails to rectify the default then the creditor can record an official default status and terminate the agreement /demand sums not yet due if the creditor so wishes

 

As to

 

The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

 

But we are now going off topic

 

Please answer my original question

Please post up the statutory legislation with subsection to support your reasoning

 

To avoid any unpleasantness

 

Simple explanation for a numbskull if you please with statutory authority, not guidance

Edited May 27, 2013 by squaddie

[postggj]

Sytra

 

Sorry this may have seemed to go off track a little bit

 

PEOPLE DO MAKE MISTAKES

 

If any individual makes an assumption that my reasoning is incorrect, i expect that person to to justify his reasoning through official sources. Those sources being Statutory Acts of Parliament/Regulations

 

I do not do hearsay or supposition, i have posted up the relevant acts and regulations to support my reasoning, you must decide what advice to follow

 

As i have previously stated, if i am in error on a posting, and it has been officially confirmed, then i will hold my hands up and move on as it is the only way people learn

 

i do not do arguments or accusations with individuals who cannot substantiate their reasoning through official means, be them right, or in error

[sytra]

I am more confused now, any help I can get with the defence will be appreciated, I don't know what to do with it

[postggj]

This is exactly the reason why i prefer not to post anymore. These constant willy waving mentality does not help the poster

 

i will now withdraw from this thread, nothing against you sytra

 

sytra

 

Hit the TRIANGLE SYMBOL and request advice from the site team

 

Good Luck

[sytra]

Thank you squaddie, have taken what you said on board.

[dx100uk]

squaddie please continue with the thread

 

it is time you learned to ignore posts that cause you issues.

 

this is simply achieved by hitting the reply with quote

proceeding/before any post you wish to ignore.

 

dx

[sytra]

Cheeky sods have banked both cheques for the CCA!!!

 

And any help appreciated, only got 2 days and have to have a defence in as wont be here to do it on fri or sat

[AndyOrch]

If you could list me the main 5 points of dispute in priority of your proposed defence Sytra...then we can see if a defence with merit may be offered.

 

Regards

 

Andy

[sytra]

Hi Andy

 

My main points i think are: (can only think of 4)

Failed to respond to CCA request from 2008 so shouldn't have brought any action anyway

No Default notice ever (defaulted while acc was still active)

Failed to respond to the pre action protocols (ie no communication from 2008 until april 2013)

Mis sold PPI

[AndyOrch]

Hi Andy

 

My main points i think are: (can only think of 4)

Failed to respond to CCA request from 2008 so shouldn't have brought any action anyway Ok thats a valid

No Default notice ever (defaulted while acc was still active) Have you checked the DSAR was one ever issued if not received?

Failed to respond to the pre action protocols (ie no communication from 2008 until april 2013) Ok that may effect costs

Mis sold PPI

Was you self employed or forced to have it on the basis of the loan being approved?

 

Regards

 

Andy

[sytra]

He was employed, but thought he had to have the PPI to take out the loan, also having seen a few other agreements on here, i am not 100% sure he ticked the boxes for the insurances as the ticks are very very similar to others.

 

As for the DN, he is adamant he never received one and when we sent the CPR18 they responded by saying that a default wasn't required

[AndyOrch]

But have you done a DSAR and checked?

[sytra]

No, we have not done a DSAR, is that the same as a SAR? we only had time to do the CCA, CPR31.14 and CPR18 after getting the claim form. I know we don't have the time to get it in now but is it still worth sending one off?

[sytra]

Another thing i dont know if it can be used in a defence, but the agreement and t&c's they sent in response to latest CCA and CPR are virtually illegible

[AndyOrch]

I think its safe to assume if " Yes there is a default on the credit file for £3823 placed on 16/2/2008." a DN must have been served..... received or not..... this would be a weak point to argue as they will simply state that their systems show one was in fact served.Irrespective of them stating that one is not required or not responding to your CPR 18 request.

 

You said that they had not responded to your section 77 request pre litigation but have now by way of the CPR request..... the fact that's its illegible would be a point of defence.

The question of PPI miss selling is weak and the onus would be on you to prove that it was not miss sold otherwise you would have queried it or cancelled it.It could be used to mitigate but not to defend.

 

Without appearing to be negative Sytra the above is what you will face should you wish to defend on those grounds.....what about the actual arrears was there a dispute/reason did he keep a paper trail of trying to resolve the matter?

 

Regards

 

Andy

[sytra]

OK, have just spoke to my brother, he has said that it started with a missed payment that spiraled and he buried his head!! and so no paper trail, only the CCA i have with me.

 

He has said he is going to try and get the money to pay it off, but it would have to go to court first to give him more time. If you think that a defence on the grounds of the CCA failure from 08 and the illegibility of the CPR response might help and also try and use the PPI to reduce the amount due. Could we go with that, even if it just buys him a month or so.

 

Thankyou for your help Andy

[AndyOrch]

You can always submit an holding defence providing it contains some merit and is CPR compliant.You can use their own CPR 18 response re a DN need not be issued and yet they defaulted him on the 16/02/08..as they rightly should have...missed payments.The fact that the agreement has now come to its natural end of term their claim is for arrears (outstanding balance) therefore their response is misleading as you was inquiring about the breach from 2008 and of course a DN would have to of been served.

 

Your major gripe would be the illegible CCA & T&Cs. Followed by the lack of contact and none complience of the pre action protocol.

 

One important point you could direct ...as your brother ever received annual Notice of Arrears since 2008? The none compliance of this would forbid enforcement?

[sytra]

Hi Andy,

the notice of arrears has never been received, as he said he has had no communication since 08.

He received a statement and a notice of sums in arrears the beginning of April, then another notice of sums in arrears on 22nd May, i have attached a copy what he had. Will also post the agreement and T&C's.

Edited May 28, 2013 by sytra

[dx100uk]

the notice of sums in arrears [NOSIN] is what andy is referencing to earlier.

in post 67 so they have sent them.

 

I've merged those pdf's too.

 

dx

[AndyOrch]

Thanks DX....scratch that from the defence then:!:

[sytra]

I have just seen this,

"If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition, The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure."

If this is right, then it might be able to reduce the amount due as they are claiming interest from 5/12/11 to 24/4/13 is that correct?

[AndyOrch]

Yes with regards the interest so that therefore allows you to substantiate a defence on the basis of the incorrect amount claimed...but its a pity if the NOSIA dated 10/4 was served after the summons date 29/04 then that may also have been brought into question which could be combined with Pre Action Protocol and procedure. Unfortunatley it wasn't:sad:

 

Regards

 

Andy

[sytra]

I do appreciate all the help that everyone is offering, even though some of it is going straight over my head.

 

I think the best i can do is try to get the amount due as low as possible for him, I know he has a little money saved and he obviously wanted to avoid a CCJ, so, if between us we can get it low enough he might be able to pay it off within the 28 days.

[AndyOrch]

Ok so a draft defence is required on the basis of the Illegibility of the CCA & T&Cs and also that the amount claimed can not be enforced as it stands as its inaccuracy due to failure to serve a NOSIA during the dates you specify precludes the interest applied.

 

In addition the PPI may be in question.

 

If you wish to draft that in your own words syta then I will tweak it and add the relevant CCA legislation and legal.

 

Regards

 

Andy

[sytra]

I have had a go at a defence (prob not worth much) so any help you can offer is great!

thinking about it, it might be a bit too long

 

 

Defence

 

1. I xxxxxxxxx am the Defendant in this action and make the following statement as my defence to the claim made by Welcome Finance Ltd

 

2. On 14th July 2008 I requested that the claimant provide a copy of the executed credit agreement, which they claim exists between parties pursuant to s77 Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

3. Section 77 consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s77 If the creditor under an agreement fails to comply with sub section (1)

 

(a) he is not entitled, while the default continues, to enforce the agreement

 

4. It is drawn to the courts attention that the claimant failed to comply with my request and is in clear default of its obligations under s77 Consumer Credit Act 1974 and it is averred that the claimant had no right of action until such time as the default was remedied and the true copy of the executed agreement produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

5. The claimant was informed of the default by way of an Account in Dispute letter dated 14th August 2008 but still failed to respond to the defendants request.

 

6. On receipt of the claim form, the Defendant requested from the acting Solicitors, by way of CPR31.14 information which is mentioned in the Particulars of Claim but due to the limitations of the filing method were not attached to the claim form.

 

7. The information requested was for a copy of the agreement on which the Claimant bases it's claim and Statements showing how the sum claimed has been arrived at.

 

8. On receipt of the claim form the defendant also requested from the acting solicitors, by way of CPR18 information relating to the Default Notices which the Defendant has not received from the Original Creditor.

 

9. On 24th May 2013 the defendant received an unsatisfactory response to both the CPR31.14 and CPR18 requests. In response to the CPR31.14 both the agreement and terms and conditions that have been sent are clearly illegible and missing parts, the CPR18 response simply states that a default notice is not required, however s87 states that a notice is a required requisite before a default can be registered and any subsequent action can be taken.

 

10. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

11. I put the claimant to strict proof that any default notice sent to me was valid. I 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)

 

12. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

13. Further the claimant failed to issue any Notice of sums in arrears from 2008 to 10th April 2013 as required by law, as a result the amount claimed is inaccurate and cannot be enforced.

 

14. Further the defendant also disputes the amount claimed due to PPI and insurances that were applied to the policy, the defendant was misled by the claimant in as much as he was led to believe the PPI and insurances (although marked optional) were compulsory in taking out the loan.

 

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

 

16. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

17. 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 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 Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

Edited May 29, 2013 by sytra