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Hi all,
Could i please have some advice on the following situation that i am now in, i will summarise the thread/situation first:-
Nationwide defaulted a credit card agreement i had with them and then eventually sent me court papers to make a claim for the amount around £3000.
I filed a defence as the Default notice is not compliant with the correct legislation.
DN:- http://i740.photobucket.com/albums/x...te/IMGedit.jpg
The CCA appears to be ok, but isnt very clear.My main defence is the Default notice.
CCA :- http://s740.photobucket.com/albums/x...%20nationwide/
here is the original POC:- http://i740.photobucket.com/albums/x...ocs/court1.jpg
My original defence is:-
In the Swindon County Court
Claim number
Between
Nationwide Building Society - Claimant
and
- Defendant
Defence
1. I am the defendant in this action and make the following statement as my defence to the claim made by Nationwide Building Society
2. 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.
3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present 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;
4a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. 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 default notices issued 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, has not been served attached to the claim form.
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, has not been served attached to the claim form.
5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.
Consequently, it is proving difficult to plead to the particulars as matters stand.
The Request for Disclosure
6. Further to the case, on 08/04/2010 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.
7. To Date the claimant has not replied to my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially as I am a Litigant in Person.
8. Also, on four separate occasions 25/01/2010, 29/010/2010, 17/02/2010 & 16/03/2010 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) 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. (Copies of the letters are included as Exhibit B).
8. The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are amongst other things: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable
9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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
It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document .
10. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order
11. Notwithstanding points 8 and 9, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
12. The claimant is therefore put to strict proof that such a compliant document exists
13. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal.
The Need for a Default notice
14. 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.
15. Notwithstanding point 14, 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)
16. Failure of a default notice to be accurate not only invalidates the default notice, 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.
Conclusion
17. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.
18. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
19. 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
20. Alternatively, should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and will seek the courts permission to amend my statement of case accordingly.
I then filled in my AQ which included section G - other info as follows:-
Section G - Other Information
As stated in the Claimants Allocation Questionnaire, i note that the claimant has served a revised Default Notice on the Defendant on 11th May.
The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. The Claimant had terminated the agreement once proceedings had commenced if not before, to deliver an effective default notice will involve the fiction the agreement is current and never terminated.
I have enclosed the original Default Notice dated 16/11/2009 (Exhibit D)
I refer to my original Defence letter under the section “The need for a default notice”
The Need for a Default notice
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.
15. Notwithstanding point 14, 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)
16. Failure of a default notice to be accurate not only invalidates the default notice, 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.
required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2
Enclosed (Exhibit C), is the case of Woodchester Lease Management Services Ltd v Swayne & 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 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 default
I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.
I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)
I have enclosed The Consumer Credit (Enforcement,Default and Termination notices) Regulations 1983 for information and ease of use.
In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4
If the court is in agreement, the defendant respectfully requests that special directions may be given as per the draft order at the bottom of the next page.
The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;
Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.
Further to the case, on 08/04/2010 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached to the defendants defence marked Exhibit A), which is vital to this case from the claimant.
Having not fully received the information I have now reissued a further request to the claimant again pursuant to the CPR 31.14.
The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment
29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give
notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.
The default notice is required by section 88 of the Act to be in the form prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.
Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer
Therefore it stands to reason that these documents must be disclosed before this case can progress any further
Draft Order for Directions
1 The Claimant shall not later than 4:00pm on 27/05/2010 file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim
(a) the executed regulated consumer credit agreement made between the defendant and Nationwide Building society under reference 4493527033995760 together with any terms and conditions that applied to it, the original document must be brought to the hearing.
(b) the default notice together with proof of method of service the original document must be brought to the hearing
(c) the termination notice together with proof of method of service the original document must be brought to the hearing
(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.
2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.
3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and
4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on 24/06/2010.
Then Nationwide decided to send me a new Default Notice which complies with the legislation.
They then filed to amend the Particulars of Claim to the amended Default Notice.
The case was the stayed twice by the judge for 1 month each time.
I have now received a new POC to which i must file a new defence for.The new POC :- http://i740.photobucket.com/albums/xx49/slightly78/court%20pocs/IMG.jpg
My opinion:- I believe that Nationwide cannot just change the default notice if one has already been issued and they have started court procedures. (Case law example of woodchester v swayne) .I was advised to sit tight with my original defence.has anyone had or know of a similar case where a creditor has changed the default notice?
Do i now just file my defence based on this fact, which i mentioned in my AQ section G (see above).?
Is there anything else i should now include in my defence?
I phoned the court a month ago to find out the situation on this case and was told by a clerk that Nationwide kept asking for a stay but havent provided any other new evidence apart from asking for an amended poc.The clerk said that the judge wouldnt be happy that nationwide would keep this case in limbo and she would speak to the judge on where this case should go now.
Im worried that there is something i shouldve done?
Any advice would be greatfully received as to what my next move should be, thanks in advance.
Ricky
Could i please have some advice on the following situation that i am now in, i will summarise the thread/situation first:-
Nationwide defaulted a credit card agreement i had with them and then eventually sent me court papers to make a claim for the amount around £3000.
I filed a defence as the Default notice is not compliant with the correct legislation.
DN:- http://i740.photobucket.com/albums/x...te/IMGedit.jpg
The CCA appears to be ok, but isnt very clear.My main defence is the Default notice.
CCA :- http://s740.photobucket.com/albums/x...%20nationwide/
here is the original POC:- http://i740.photobucket.com/albums/x...ocs/court1.jpg
My original defence is:-
In the Swindon County Court
Claim number
Between
Nationwide Building Society - Claimant
and
- Defendant
Defence
1. I am the defendant in this action and make the following statement as my defence to the claim made by Nationwide Building Society
2. 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.
3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present 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;
4a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. 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 default notices issued 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, has not been served attached to the claim form.
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, has not been served attached to the claim form.
5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.
Consequently, it is proving difficult to plead to the particulars as matters stand.
The Request for Disclosure
6. Further to the case, on 08/04/2010 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.
7. To Date the claimant has not replied to my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially as I am a Litigant in Person.
8. Also, on four separate occasions 25/01/2010, 29/010/2010, 17/02/2010 & 16/03/2010 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) 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. (Copies of the letters are included as Exhibit B).
8. The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are amongst other things: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable
9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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
It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document .
10. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order
11. Notwithstanding points 8 and 9, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
12. The claimant is therefore put to strict proof that such a compliant document exists
13. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal.
The Need for a Default notice
14. 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.
15. Notwithstanding point 14, 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)
16. Failure of a default notice to be accurate not only invalidates the default notice, 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.
Conclusion
17. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.
18. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
19. 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
20. Alternatively, should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and will seek the courts permission to amend my statement of case accordingly.
I then filled in my AQ which included section G - other info as follows:-
Section G - Other Information
As stated in the Claimants Allocation Questionnaire, i note that the claimant has served a revised Default Notice on the Defendant on 11th May.
The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. The Claimant had terminated the agreement once proceedings had commenced if not before, to deliver an effective default notice will involve the fiction the agreement is current and never terminated.
I have enclosed the original Default Notice dated 16/11/2009 (Exhibit D)
I refer to my original Defence letter under the section “The need for a default notice”
The Need for a Default notice
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.
15. Notwithstanding point 14, 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)
16. Failure of a default notice to be accurate not only invalidates the default notice, 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.
required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2
Enclosed (Exhibit C), is the case of Woodchester Lease Management Services Ltd v Swayne & 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 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 default
I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.
I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)
I have enclosed The Consumer Credit (Enforcement,Default and Termination notices) Regulations 1983 for information and ease of use.
In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4
If the court is in agreement, the defendant respectfully requests that special directions may be given as per the draft order at the bottom of the next page.
The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;
Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.
Further to the case, on 08/04/2010 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached to the defendants defence marked Exhibit A), which is vital to this case from the claimant.
Having not fully received the information I have now reissued a further request to the claimant again pursuant to the CPR 31.14.
The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment
29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give
notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.
The default notice is required by section 88 of the Act to be in the form prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.
Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer
Therefore it stands to reason that these documents must be disclosed before this case can progress any further
Draft Order for Directions
1 The Claimant shall not later than 4:00pm on 27/05/2010 file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim
(a) the executed regulated consumer credit agreement made between the defendant and Nationwide Building society under reference 4493527033995760 together with any terms and conditions that applied to it, the original document must be brought to the hearing.
(b) the default notice together with proof of method of service the original document must be brought to the hearing
(c) the termination notice together with proof of method of service the original document must be brought to the hearing
(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.
2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.
3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and
4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on 24/06/2010.
Then Nationwide decided to send me a new Default Notice which complies with the legislation.
They then filed to amend the Particulars of Claim to the amended Default Notice.
The case was the stayed twice by the judge for 1 month each time.
I have now received a new POC to which i must file a new defence for.The new POC :- http://i740.photobucket.com/albums/xx49/slightly78/court%20pocs/IMG.jpg
My opinion:- I believe that Nationwide cannot just change the default notice if one has already been issued and they have started court procedures. (Case law example of woodchester v swayne) .I was advised to sit tight with my original defence.has anyone had or know of a similar case where a creditor has changed the default notice?
Do i now just file my defence based on this fact, which i mentioned in my AQ section G (see above).?
Is there anything else i should now include in my defence?
I phoned the court a month ago to find out the situation on this case and was told by a clerk that Nationwide kept asking for a stay but havent provided any other new evidence apart from asking for an amended poc.The clerk said that the judge wouldnt be happy that nationwide would keep this case in limbo and she would speak to the judge on where this case should go now.
Im worried that there is something i shouldve done?
Any advice would be greatfully received as to what my next move should be, thanks in advance.
Ricky
, after sending a letter saying they didnt need this, they sent a copy of the CCA to my branch.
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