NRAM contact letter

[worriednanxious]

Andy sorry to be a pain but do you have any advice on this yet?

 

 

I know Monday is supposed to be an allocation and direction hearing again so don't know if I need anything ready by then or just go by previous directions?

Thanks

[Andyorch]

Hi Worried

 

The hearing on Monday is it a CMC? I note you have to exchange WS by the 22nd Sept.

 

Andy

[worriednanxious]

Andy sorry not sure what a CMC is? or a WS sorry I'm not great on acronyms (which is bad considering where i work!)

 

 

letter from court says allocation and directions hearing,

is this because the first one was delayed to get them to come up with the full agreement?

If so do I need a better defence by Monday?

[Andyorch]

CMC case management conference WS Witness Statements.

Sound like the DJ will just appoint track and issue yours and the Claimants Directions.Nothing to worry about or prepare for but it will give a little clarity to the direction of the case.

 

Andy

[worriednanxious]

Ok sounds good

feel that I have a bit more time now to work out if I actually have a case or not?

 

 

Will you be able to look over for me when you've got time

- not worried about it being by monday now but just if you find time..

.. a precious commodity I know!

[Andyorch]

Yes Worried. update your thread after the hearing and i will run through your thread again.

 

Regards

 

Andy

[worriednanxious]

court was a bit scarier this time but judge was quite nice.

 

Good news is he said the default notice should have a rectify date of 13th not 12th on it so I think thats the crux of the arguement.

 

he set directions of:

 

NR to provide clear statement of breakdown and charges by 5th Oct.

 

A fully particularised defence from us by 19th Oct (should be clear and only about points of error??)

 

Disclosure of docs - 1Xth Nov

 

Inspection of docs 2Xrd Nov

 

Exchange of witness statements by 2xst Dec

 

Listing questionnaires by 1xth Jan

 

Case Management Conf on 25th Jan

 

final hearing in March 2010 (2hours to be set)

 

Another good thing

NR tried to get a time order for our defence

but the judge denied this because we have complied so far and they have held things up by not supplying full documents.

 

can somebody help with drafting a fully particularised defence

- even if we need to add further when the full charges are revealed.

 

Also is the dodgy DN a strong enough argument

- I am worried about be lumped with a whole load of more charges etc if I don't stand a chance of winning.

 

Extremely grateful for any help

 

Oh forgot to say

- received a letter from NR today about this debt saying it was in arrears and if arrears not paid in 7 days then they will instruct their solicitors to take legal action!

Aren't they just wonderful!!

Can harrasment be a defence?

[the_shadow]

Good news about the default notice and the acknowledgment that its incorrect.

 

Glad you got lucky in the judge lottery today

 

S.

[Andyorch]

Get back to you on this tomorrow Worried,well done on todays hearing;)

 

Regards

 

Andy

[worriednanxious]

Thanks for the encouragement unfortunately it probably won't be the same judge at the final hearing!

[worriednanxious]

we have the info from NR

- My addition was at fault I think so I can't see anything wrong with the statement or additional charges being included in the claimed amount.

 

next step is for our fully particularised defence

- can somebody help with this.

 

I have seen a lot of threads with the first defence on but nothing further.

 

Also what are the chances of a favourable outcome if we take this all the way

- I don't think NR are going to back down at all.

 

can anybody help with a fully particularised defence it has to be at the courts in a week.

 

the fully particularised defence needs to be at the court on Monday and I really don't know where to start.

 

 

Can anybody help please.

 

 

Thankyou

[Andyorch]

Good Morning Worried

 

I am extremely busy at the moment however I always keep to my word.

The DJ as sided with you re the DN error,thats good enough to win on its own merits.The documentation disclosed is somewhat sketchy.Disregard the mini statements they are manually produced hence the lack of unfair charges,you need the originals (dont worry they have them they just dont want to show them)

The DJ as requested that you submit an amended defence in view of events/errors so far which will be an up to date account of proceedings.

To concentrate on the following points :-

 

Defective DN wrong time allowed to rectify breach

Unfair charges applied to the account.

Any other point that the DJ as referred to that will assist your case

 

Cag is a self help forum and as such we dont have time to draft individual defences, if you can look a round the NR section and find something similar then we can use that as our skeleton and edit to suit.

Dont worry about case laws legal jargon the DJ as request a defence outlining the Claimants errors.

If you can make a start on what i have advised and I will get back to through out the day

 

Regards

 

Andy

[worriednanxious]

Andy thanks will have a go at something tonight.

Sorry don't get much time in the day I work full time so only have lunchtime to drop in and look, then don't get a chance until the child is in bed.

Very grateful for your help and advice.

 

I have presumed that a particularised defence is the same as the first defence but highlights the actual issues rather than being vague.

 

I initially amended my original defence and added a few bits.

Any ideas for amendments/inclusions would be appreciated:

 

1 The Defendant admits entering into an agreement with Northern Rock 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 the agreement and the extent to which Northern Rock and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

 

Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 Without prejudice to the generality of the facts and matters set out at paragraphs 1 above,

the Defendant admits the receipt of the default notice relied upon by the Claimant, namely a notice dated 25 September 2008.

 

Save that the notice was served upon the Defendant on a date thereafter and that service was by post,

the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her.

 

The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice.

 

Alternatively, the date specified in the notice by when the Defendant was required to comply was before 13 October 2008 which was not a date which was 14 days after service of the notice.

 

3 Further to the matters set out at paragraph 2

some of the text contained in the default notice does not confirm to the 1983 regulations.

 

Specifically the underlined text in the

"If the action required..." should be afforded more prominence as the test around it is in bold further, the "DO NOT" in the next statement is not even underlined, and it should be.

 

Finally the default notice does not contain a signature from Northern Rock.

 

4 Further to the matters set out at paragraph 2,

the Defendant avers the Claimant terminated the agreement on or after 8 December 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further and in any event,

by reason of the matters set out at paragraph 2 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

6 The Claimant’s claim to be entitled to £24, xxxx or any other relief following termination of the agreement is denied.

 

7. In addition 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 is alleged to have commenced in 2005,

 

the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

Additionally to this I have been reading the t&cs of the agreement again and found something that could be dodgy.

 

Section 2.5 states that you may not make any drawdown of the loan amount if:

you have mortgaged your residential property as security for a loan exceeding 95% of its value.

 

Well this agreement was part of a together agreement they orignally loaned the mortgage as well.

 

The mortgage they provided was (from what I can ascertain) was for definately more than 95% of the value of the house at the time.

 

haven't they broken their own contract by loaning this amount?

 

Could this also be included in the defence?

 

I can't confirm what valuation they received at the time but from sales in the area and the fact that our house was in a state of completion (an extenstion was only partly built) I am fairly sure they mortgaged us for more than 95%!

[Andyorch]

Ok thats looking good Worried

 

I recognize a lot of it;)

 

Put the bit in from the T&C also more the merrier

What about unfair charges?

 

 

Perhaps you can post the original P.O.C again also as a refresher

 

Andy

[worriednanxious]

Thanks Andy, yeah I noticed alot of the posts were from you - you work very hard!

 

The POC details were:

 

The Claimant's claim is for the sum of £2xxxx.xx being the amount due on account ref 12345678 being a credit agreement regulated by the consumer credit act 1974.

 

A consumer credit default notice has been served by post on the defendant and has not been complied with Interest continues to accrue on the amount due at the contractual rate stipulated in the credit agreement.

 

I have checked through the statements they sent me and cannot find any unfair charges being included in the amount they have claimed on the court order, can this be different than the amount they finally want?

 

 

Should I include it now because since the order has been raised they have added charges which they will want if they win!

 

Have been thinking about the wording ref them not abiding by the contract:

 

8. Further to paragraph 1,

it is the defendants belief that NR did not comply with section 2.5 of the terms and conditions whereby parties will not be able to drawdown the loan amount if they have mortgaged their residential property for more than 95% of the value.

 

 

NR themselves had processed and agreed a mortgage for the defendants on their residential property for more than 95% of the value.

 

 

The defendant therefore believes that NR deliberatly broke the terms of the agreement and as a result it should be deemed unenforceable.

 

Any ideas on this, can it be tweaked.

 

 

How would this stand in court?

 

 

Is it unenforceable if they broke the terms at the start?

[Andyorch]

Thanks Andy, yeah I noticed alot of the posts were from you - you work very hard!

 

The POC details were:

 

The Claimant's claim is for the sum of £2xxxx.xx being the amount due on account ref 12345678 being a credit agreement regulated by the consumer credit act 1974.

 

A consumer credit default notice has been served by post on the defendant and has not been complied with Interest continues to accrue on the amount due at the contractual rate stipulated in the credit agreement.Is it stipulated?

 

I have checked through the statements they sent me and cannot find any unfair charges being included in the amount they have claimed on the court order, can this be different than the amount they finally want? Should I include it now because since the order has been raised they have added charges which they will want if they win! The Summons and DN and Termination Notice should all have the same figure.The closing statement figure should mirror the same.Any unfair charges applied to the account if any through out its life will be in the Summons amount.

 

Have been thinking about the wording ref them not abiding by the contract:

 

8. Further to paragraph 1, it is the defendants belief that NR did not comply with section 2.5 of the terms and conditions whereby parties will not be able to drawdown the loan amount if they have mortgaged their residential property for more than 95% of the value. NR themselves had processed and agreed a mortgage for the defendants on their residential property for more than 95% of the value. The defendant therefore believes that NR deliberately broke the terms of the agreement and as a result it should be deemed unenforceable. or would not be inline with there lending criteria as per the provision 2,5 of the T&Cs?

 

Any ideas on this, can it be tweaked. How would this stand in court? Is it unenforceable if they broke the terms at the start?

Well it could be considered irresponsible lending.

 

Regards

 

Andy

[worriednanxious]

Thanks Andy,

I have checked and it is stipulated in the agreement that interest will continue to accrue until any judgement is made.

 

 

That also explains why the figures are different on the DN, Termination and POC,

but I can't see from the statement that any charges where included before then.

There were never any late payments until this all started so would have been no need for charges.

 

Is the defence ready to go then?

Should I include or amend anything else?

Is it a problem if we miss anything now that we might want to include later?

Also is it particularised enough - the judge was quite clear that it should be.

 

Thanks for the help.

I am off to bed now but will check back tomorrow as soon as I can.

[Andyorch]

Thanks Andy, I have checked and it is stipulated in the agreement that interest will continue to accrue until any judgement is made.Yes but judgement as not been made yet so all figures are static as at the time of the DN date.The TN should be the same as the DN only listing the arrears That also explains why the figures are different on the DN, Termination and POC, but I can't see from the statement that any charges where included before then.What about since then? There were never any late payments until this all started so would have been no need for charges.But since?

 

Is the defence ready to go then? Should I include or amend anything else? Is it a problem if we miss anything now that we might want to include later? Also is it particularised enough - the judge was quite clear that it should be.As long as you feel you have covered what the DJ highlighted at the hearing try to focus on his comments

 

Thanks for the help. I am off to bed now but will check back tomorrow as soon as I can.

No probs sleep well

 

Regards

 

Andy

[worriednanxious]

brought papers with me to check out at lunchtime.

There is no total amount on the DN just amounts to bring account upto date.

The court papers are different from the Termination notice but only because interest has been added in the meantime.

As for the final amount they want - can this just be what they put on the court papers?

 

Have noticed on the DN that after the final signature (if thats what you call it!) it says we will charge £25 a month if your account becomes 2 mths in arrears, this will rise to £55 a month if you acc becomes 3 months or more in arrears.

 

 

they are probably charging this now.

Also on the statement is about £800 in legal charges,

which I thought were being included in the 4 grand stated on the original court papers!

 

So in the defence should I include something like:

 

Further,

incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and legal costs.

 

 

It is denied (if it be alleged) that the Claimant has incurred any such fees and charges,

alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant.

Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

Should this be worded to be more accurate to the precise charges we are disputing?

 

Thankyou

[Andyorch]

Ok brought papers with me to check out at lunchtime. There is no total amount on the DN just amounts to bring account upto date.Arrears thats ok The court papers are different from the Termination notice but only because interest has been added in the meantime. Cant happen the termination is printed before the Summons As for the final amount they want - can this just be what they put on the court papers? Termination Notice Balance should equal the Summons amount.

 

Have noticed on the DN that after the final signature (if thats what you call it!) it says we will charge £25 a month if your account becomes 2 mths in arrears, this will rise to £55 a month if you acc becomes 3 months or more in arrears. So they are probably charging this now.Maybe but thats nothing to do with the Summons amount and not applicable once the agreement as been terminated by the TN Also on the statement is about £800 in legal charges, which I thought were being included in the 4 grand stated on the original court papers!How do you know there not?

 

So in the defence should I include something like:

 

Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and legal costs. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

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.

 

Should this be worded to be more accurate to the precise charges we are disputing?

 

Thankyou

 

Regards

 

Andy

[worriednanxious]

Sthis is the full defence I will be taking on Monday:

 

1 The Defendant admits entering into an agreement with Northern Rock 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 the agreement and the extent to which Northern Rock and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

 

 

Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 Without prejudice to the generality of the facts and matters set out at paragraphs 1 above,

the Defendant admits the receipt of the default notice relied upon by the Claimant,

namely a notice dated 25 September 2008.

 

 

Save that the notice was served upon the Defendant on a date thereafter and that service was by post,

the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her.

 

 

The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice.

 

 

Alternatively, the date specified in the notice by when the Defendant was required to comply was before 13 October 2008 which was not a date which was 14 days after service of the notice.

 

3 Further to the matters set out at paragraph 2

some of the text contained in the default notice does not confirm to the 1983 regulations.

 

 

Specifically the underlined text in the

"If the action required..." should be afforded more prominence as the test around it is in bold further,

the "DO NOT" in the next statement is not even underlined, and it should be.

 

 

Finally the default notice does not contain a signature from Northern Rock.

 

4 Further to the matters set out at paragraph 2,

the Defendant avers the Claimant terminated the agreement on or after 8 December 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further and in any event,

by reason of the matters set out at paragraph 2 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

6 The Claimant’s claim to be entitled to £24, xxxx or any other relief following termination of the agreement is denied.

 

7. In addition 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 is alleged to have commenced in 2005, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

8. Further to paragraph 1,

it is the defendants belief that NR did not comply with section 2.5 of the terms and conditions whereby parties will not be able to drawdown the loan amount if they have mortgaged their residential property for more than 95% of the value.

 

 

NR themselves had processed and agreed a mortgage for the defendants on their residential property for more than 95% of the value.

 

 

The defendant therefore believes that NR deliberatly broke the terms of the agreement and as a result it should be deemed unenforceable.

 

9. Further,

incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and legal costs.

 

 

It is denied (if it be alleged) that the Claimant has incurred any such fees and charges,

alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant.

 

 

Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

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.

 

Is this ok, am I missing anything else?

 

Very grateful for the help and advice,

would be lost without it!

 

 

Still fighting this is slightly scary!

 

 

Especially little old me against a big corporate company!

[worriednanxious]

Opps had so much stuff going on I lost track of this!

Disclosure of documents is due on Monday,

I was going to send a copy of:

 

Agreement

Default Notice

Termination Notice

Statement of Account.

 

Do I really need to do this as they were all sent by NR in the first place

- seems a bit silly?

 

 

I presume I just take copies and attach them to some paper with the case details and deliver them to the court.

 

Thankyou

[Andyorch]

Not exactly you have to complete the N265 and use that for dislosure.You dont take it to Court you send it to the Claimant only disclose what you intend to rely on in the case.

 

Andy

[worriednanxious]

Oh Thanks Andy - I have printed the form and will attach those documents this weekend. They won't have it by the 4pm deadline on Monday but it will have been sent by then, which hopefully will be enough.

 

Still seems silly that I have to send to their lawyers what their lawyers sent to me! But at least if we do it they won't get an order without having to prove stuff.

 

Thanks again - will keep you updated

[Andyorch]

I know it appears daft but that is your Disclosure list that you wish to rely on,so if you didnt do it then you cant introduce or rely on any documents in your case.

 

Regards

 

Andy