Urgent Advice needed for court case please

[NS7589]

Hi,
I'm new to this forum, so hello everyone, its good to be here, and please bear with me!

I've been taken to court by a credit card provider (N'wide). The brief history is:

CC Agreement commenced 31 March 2007.
I entered a DMP early 2009 with several creditors, following a major job loss and severe mental ill health. All eventually accepted the DMP, except N'wide. They aggressively pursued from the outset, always demanding full repayment, before serving a dodgy Sec 87, terminating the account, and then issuing court proceedings just under a year ago.

I submitted a full defence based on - their POC being innaccurate; dodgy Sec87 etc; their irresponsible conduct of the account; their aggressive and unreasonable conduct in chasing the debt; their ignoring the fact of me being in a DMP and unable to pay more and refusing to deal with the DMP company (Payplan); their vexatious and unnecessary pursuit of litigation; and their being unable to produce the original agreement (they admit they don't have it any more).

To date there has been no hearing, just AQs, and an order to mediate (which I agreed to but they refused on the grounds I couldn't pay them the whole amount outsatnding).

Recently they sent me 1. a 'new' Sec 87 DN, and 2. a reconstructed agreement, (admitting they don't have the original) quoting Waksman/Carey to enable them to enforce the agreement in court.

They then made a successful application (without a hearing and without my agreement) to amend their POC to rely on this 'new' DN in their claim, and also seek to enforce the agreement by virtue of the recon agreement. I was granted leave to submit an amended defence and/or apply to set aside/vary the order.

I was then advised by someone (that's another story....) to apply to have the claim struck out or summary judgement against them, on the basis of the dodgy Sec 87 prior to termination. So I drafted a very lengthy application and submitted it to the court, within the allotted timescales, being told there was no fee to pay.

However, over a week later I received a letter from the court saying that I needed to pay an application fee of £75. I contacted them and asked why, and they told me it was because my application amounted to more than the set aside / variation that the judge had granted me leave to apply for. They said I could re-submit the application "as soon as possible" (as the time for me to respond had of course now passed) as I had been wrongly advised by the court when submitting it.

MY DILEMMA NOW IS THIS: How do I best respond to the Order? I have less confidence now in the dodgy DN defence (having read The Mouse That Roared/Costa's thread on the subject) and application for strike out etc, at this stage - though I still have it in my armoury so to speak.
It seems I might be better applying to amend the order so that they cannot rely on the 'new' Sec87 DN or enforce the agreement using the recon?? -whilst retaining the other elements of my defence as above.

I have attached the recent relevant parts of the court order etc below.

I would really appreciate some expert advice. I have struggled along this far and am loathe to chuck the towel in at this late stage as I feel I have a genuine defence, but now feel a bit out of my depth. Please forgive me for the lengthy post but its difficult to explain properly otherwise.



Thanks for your time in reading this, your advice is genuinely sought and appreciated
NS7589

[WendyB]

Re: Urgent Advice needed for court case please

Hi and welcome to Beagles.
I'm not an expert by any means but I think you are probably right not to have confidence in the dodgy DN defence, there's a few threads on here dealing with the same thing. And there have also been a fair few Judgements recently with regards to agreements that appear to be blatantly wrong but be that as it may they do stand at the moment so we just have to take them into account when advising the best course of action.

You haven't mentioned the sums involved here, is this still small claims, or is it fast track?

I'm just wondering about if you do defend and lose, you could end up with costs which could be quite high. Do you have any assets, house etc? Would there be any chance of a charging order being placed on your home?

Sorry for all the questions but the fuller the picture the better. No doubt some of the experts will be along shortly

[basa48]

Re: Urgent Advice needed for court case please

I would have thought the complete lack of a signed agreement was an absolute defence.

Reconstructions are fine for s78 compliance, but are not OK for proof of execution under s61. Particularly if there have been any variations to the account (interest, credit limit etc).

Also, how 'dodgy' was the DN? If just a day short on time - forget it. If it was grossly over stating amounts due then it is a good argument.

I wonder why they would issue a 'new' DN if the original was OKish. I also wonder how they could issue a DN on a terminated account. What is the remedy amount for the 'new' DN?

[NS7589]

Re: Urgent Advice needed for court case please

You haven't mentioned the sums involved here, is this still small claims, or is it fast track?

Hi Wendy and thanks for your response. Its approx £1500 and small claims.
You're absolutely right about the risk of costs/charging etc, but what am I supposed to do? I'm in a DMP and genuinely cannot afford to pay them more. I've missed no payments over a year and a half, communicated and co-operated with them through Payplan and offered to enter into mediation with them throught the court, but they don't want to know and have doggedly pursued enforcement, which seems pointless - except of course if you take the cynical view that they are simply after a charge on my house? Just strange that none of the other creditors - most substantially larger debts - have taken the same approach?!

NS

[WendyB]

Re: Urgent Advice needed for court case please

So you have continued to pay them even though they have not accepted your DMP?

It seems to me that you have acted more than reasonably and yes they would seem to be vexatious in bringing the claim. Have a look at Jumpers thread, there's lots of differing views on there, some of it conflicting, but its summed up pretty well towards the end. Also DifferentJudge made an excellent post on Crispybacon's thread yesterday. I'm sorry I can't do links at the moment as my laptop is having a bit of a turn.

[NS7589]

Re: Urgent Advice needed for court case please

I would have thought the complete lack of a signed agreement was an absolute defence.

Reconstructions are fine for s78 compliance, but are not OK for proof of execution under s61. Particularly if there have been any variations to the account (interest, credit limit etc).

Also, how 'dodgy' was the DN? If just a day short on time - forget it. If it was grossly over stating amounts due then it is a good argument.

I wonder why they would issue a 'new' DN if the original was OKish. I also wonder how they could issue a DN on a terminated account. What is the remedy amount for the 'new' DN?

Hi Basa and thanks for your response. I agree about the lack of a signed agreement, and also CPR 16 7.3(1) appears clearly to state that the original must be available at the hearing?

the DN:-
1. did not state a date for remedy - just said "payment must reach your account within 14 days from the date of this default notice". N'wide state that it takes 9 working days for a payment to reach an account!
2. Nature of breach - failing to make at least the min' payment.
3. "Action required" was payment of the balance in full and return of the card. Is that reasonable given it was over a thousand times more than I was paying thru the DMP?
4. did not afford more prominence to the required statements

The remedy amount for the 'new' DN was everything they have loaded on to the total since - £100s more!
I think they know the original DN is dodgy - the 'new' one is compliant - but they have presented it as giving me a fresh opportunity to pay up. How magnaminous of them! They stated in their application to amend their POC that they wanted to "rely" on the 'new' DN in their claim, so obviously they found the original DN unreliable!

Thanks
NS

[NS7589]

Re: Urgent Advice needed for court case please

So you have continued to pay them even though they have not accepted your DMP?

Yep, and never missed a payment. Its not a lot but its all I've got! I SAR'd them earlier this year and have evidence from their side that they knew about my DMP and were communicating with Payplan, whilst claiming to me that they knew nothing about it and that I was refusing to co-operate with them! Of course they have accepted the payments from Payplan, but have refused to formally agree a payment arrangement. I know that legally that's their right etc, but is this what the court's are for....?

Oh, and I forgot to say - they have never responded to my CPR request, 10 months ago - or is that because it's small claims and they don't have to?

NS

[basa48]

Re: Urgent Advice needed for court case please

Hi Basa and thanks for your response. I agree about the lack of a signed agreement, and also CPR 16 7.3(1) appears clearly to state that the original must be available at the hearing?

the DN:-
1. did not state a date for remedy - just said "payment must reach your account within 14 days from the date of this default notice". N'wide state that it takes 9 working days for a payment to reach an account!
2. Nature of breach - failing to make at least the min' payment.
3. "Action required" was payment of the balance in full and return of the card. Is that reasonable given it was over a thousand times more than I was paying thru the DMP?
4. did not afford more prominence to the required statements

The remedy amount for the 'new' DN was everything they have loaded on to the total since - £100s more!
I think they know the original DN is dodgy - the 'new' one is compliant - but they have presented it as giving me a fresh opportunity to pay up. How magnaminous of them! They stated in their application to amend their POC that they wanted to "rely" on the 'new' DN in their claim, so obviously they found the original DN unreliable!

Thanks
NS

Erm, let me get this straight.

The original DN asked for the whole balance as remedy - not the arrears?

And the second DN asked the same (whole balance) plus additional charges?

And they admit there is no signed credit agreement.

Are they having a laugh!!!!!!!!!!

[Angry Cat]

Re: Urgent Advice needed for court case please

Oh, and I forgot to say - they have never responded to my CPR request, 10 months ago - or is that because it's small claims and they don't have to?
NS

Was that under CPR Part 31.16?

And yes, they can issue a further DN, in order to erase mistakes made in the first Default Notice issued.

[NS7589]

Re: Urgent Advice needed for court case please

Basa - Yes, the original DN asked for "payment of the balance £1,442.07 in full". No mention of just paying arrears.
The 'new' DN required action was "payment of the overdue minimum payments which at the date of this notice stand at £710" - which I take to mean the arrears (at least according to them)

Also re the signed credit agreement - yes they admit they haven't got it. But they have produced the 1 page out of 5 of my application form, with my signature on it, claiming that suffices?! they also say they cannot find the other 4 pages....

NS

[NS7589]

Re: Urgent Advice needed for court case please

Was that under CPR Part 31.16?

And yes, they can issue a further DN, in order to erase mistakes made in the first Default Notice issued.

Hi Angry Cat,

No it was under Pre-action Practice Directions - Protocols 4.6 of the CPR. That's what I was advised at the time.

I'm aware that any number of DNs can be issued - but after they've terminated the agreement?? They sent me a letter in Nov 2009 explicitly terminating the agreement, and stating that the full balance had become repayable. TThe original DN was the one they relied on to take me to court.

The 'new' DN, sent in August 2010, states, amongst other things,
"if you fail to take the action required......then the full balance of the agreement which currently stands at £XX,XXX will become repayable, and the agreement will terminate." (my emphasis) But what agreement? If they terminated it a year ago, how can they terminate it again? And how can they refer to "...the agreement which currently stands...." when there is no current agreement?! Surely the point is that their 'new' DN is based on the assumption of a live/current agreement, when none exists?

I note that one of their amendments to their POC is reference to me as "the customer of the Claimant" But I'm not! I'm their ex-customer!
Or am I just being too simple? lol

NS

[Angry Cat]

Re: Urgent Advice needed for court case please

The CPR pre action protocol: 4.6(c), has often been ignored;
a useful tool, if you are the claimant, though.

[Angry Cat]

Re: Urgent Advice needed for court case please

Default notices

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

(c)
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.


(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.
(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

[Amethyst]

Re: Urgent Advice needed for court case please

You mention they sent a new DN recently.

I've just been talking to a guy (ricky balboa - if you search on Nationwide his thread should come up) who also had a new DN issued - after two others and after court action, instigated by Nationwide, had been in progress for a month, and they also applied to amend their particulars of claim. (He's now offering a reduced F&F settlement and has entered an admission/offer but negotiating on the fact the court will order teeny monthlys for a hundred years and they could get it out their hair now so will let you know what happens, but I think his circumstances slightly differ in that the court had stayed the claim to allow NW to enter a new DN) Theres some copies of the different DNs and accompanying letters on his thread too.
.
You entered the (wrong) application to set/aside vary within the 14 days and asked for a strike out on that basis ? So you can now enter a defence rather than applying for a strike?

I'm not the best in the world on DN's, but as I see it a faulty DN means non enforcement and puts you back to the position you would have been in before the first, incorrect, DN.


So some Q's.

Were you prejudiced by the incorrect original DN ?

If it had only stated arrears required to rectify, would you (could you) have paid those arrears and continued payments thereafter in line with the contractual amount ? (The being in a DMP kinda says No to that)

In other words, if there is a non-compliance, it has to be looked at in terms of the genuine effect on the consumer of the actual errors, and the actual result argued for. Lending agreements and methods of enforcement are each many and varied. The particular failing argued for has to be measured against precise context within the Act, against the actual effect on the borrower, and the particular means of enforcement or remedy sought.

swarb.co.uk Co - seems a useful discussion on woodchester if you are interested, DLS just worded that part better than I manage to.

[NS7589]

Re: Urgent Advice needed for court case please

You entered the (wrong) application to set/aside vary within the 14 days and asked for a strike out on that basis ? So you can now enter a defence rather than applying for a strike?

Based on advice I had received elsewhere, I chose not to enter an application to set aside/vary, and instead chose to enter an application for summary judgement/strike out based on the invalid original DN. Whilst procedurally it was OK for me to do that, I now conclude it probably wouldn't succeed, and think I should have applied for a set aside/vary instead, based on the 'new' DN being invalid because it is post-termination of the agreement, and because they have no original agreement.

I have already submitted a full defence when the case started months ago. Recently, above, I chose not to amend my defence in the light of their amending their POC - probably wrong of me but I didn't know any better.

Were you prejudiced by the incorrect original DN ?

Absolutely I was, and I understand the principle that, when it comes down to it, the judge won't be that interested in what (s)he sees as me trying to wriggle out of my obligations using 'loopholes'.

I was prejudiced because the original DN (there were 2 identical ones a month apart actually) only gave me one option - payment in full immediately of the outstanding balance on the account - approx £1450. The stated arrears on the account at the time (according to their notice of sums in arrears) was just over £100. Min monthly contractual payments were around £15.

I couldn't possibly have remedied the full amount, but I could have paid the arrears (by hook or by crook!) and then re-commenced monthly contractual payments - especially had I known it would lead to the current situation. It has been a feature of their handling of the situation that, almost from the outset, they have demanded nothing less than full repayment, except for one notable occasion when KPR (DCA) contacted me offering a F&F settlement of £1000!

And in the above respect, Payplan were most unhelpful, as they told me NOT to enter into negotiation with creditors, and NOT to seek to come to individual agreements with a creditor but just to keep making the nominal payments through the DMP, even if court action was threatened. If only I had known then what I know now....

And of course the 'new' DN issued recently, states arrears of over £700, because it includes all the interest/charges/fees they have added since the original DN a year ago.

I would call all that prejudicial.

I'll look at the thread you mention. Thanks