Bank taking me to court advice needed

[mar1kos]

Unsecured loan of 10k taken August 2009
fallen into Financial hardship in ocotober 2010
Bank refused to help till june 2011 where they acknowledge their mistake
A £50 good will gesture recieved, reduced payment of £1.00 till april 2011
October 2011 Moorcroft stared chasing and harassing me for payment.
Received court papers may 2012
acknowlegment sent to defend entire claim
CPR 31.15 sent to solicitors, received nothing back except the agreement.
Default notice lost and can be located.
Bank solicitor claims that "it is submitted that the CCA 1974 does not require the claimant to keep a copy"
"Postage alone constiutes service"
Annual statement of august 2010 after one year never received even though i asked for a copy in march 2011.
Please any advice how to formulate a defence will be appreciated.

[SpringerSpaniel]

Re: Bank taking me to court advice needed

Who is the claimant - bank, Moorcorft or some other party ?

[teaboy2]

Re: Bank taking me to court advice needed

Lol are they serious, they do not need a default notice? - So how are they going to prove default notice was valid, contained correct amounts and was to perscribed form? Failure of a default makes it invalid, therefore so does lack off one. Postage does not prove what type of document was sent! Not only that but postage alone does not proof service (unless signed for on receipt)

section 87 and 88 are pretty clear what is required for default notices - No default notice then no right to enforce! in your defence strict them to proof of postage of default and strict them to proof thst the default was served (received by you) on you. Also strict them to proof that the default notice existed, was to perscribed form (under the consumer credit (enforcement, defaut and termination) regulastions 1983, and that it contained the correct amounts and complied with section 88 of the consumer credit act 1974 to ts fullest extent.

They may very well struggle to proof service or that it ever existed.

[IanM]

Re: Bank taking me to court advice needed

""Postage alone constitutes service""?

So, if i buy a first class stamp, get a receipt, is that proof i posted a cash payment to someone to pay a debt?

[mar1kos]

Re: Bank taking me to court advice needed

Thanks for all replies

2. Breach of section 77A of the CCA 1974: March 2010 (loan taken august 2009) i sent them a letter requesting the statement under section 77A of the CCA. I never got a reply, nor the statement.
statement August 2010: not sent/received
statement August 2011:received.
are they in breach of section 77 of the cca 1974 ?
3.Default notice not supplied as requested by CPR 31.1 .
they are saying:"logistically impossible to retain copies. It is submitted that the Consumer Credit Act 1974 does not require the claimant to keep a copy. Postage alone constitutes service by reason of section 7 of the interpretation Act 1978 and in absence of proof to the contrary, the Default Notice is in any event deemed to have been delivered. There is no of the Defult Notice being returned."
any help appreciated and needs to send my defence.

[teaboy2]

Re: Bank taking me to court advice needed

Strict them to proof it was a default notice in the envelope that they posted. They'll have a hard job doing that. Yes proof of postage is evidence of service, but it is not proof of what was sent or proof, that if it where the default notice, that said default notice was valid e.g. allowed for 14 calender days for remedy (after date of service) and complied with perscribed form, and contained the correct amounts. All of which are vital in order for the DN to be valid.

By the way, Section 77 is for request for copy of the Credit Agreement. Section 77A is for statements. Can you confirm for avoidance of doubt which section you actual mean and whether you meant statement of meant request for copy of agreement (which i think you said they sent in repsonse to CPR31.14 request (its not CPR31.15 by the way)

[mar1kos]

Re: Bank taking me to court advice needed

Thanks for your prompt reply "teaboy2" much appreciated

I mean section 77A: Required statements

Section 6 of the Consumer Credit Act 2006 section (s77A) whereby a statement must be provided if the agreement is a fixed sum credit agreement under section 77A. The statement should explain the money borrowed, money paid, interest in all cases and the outstanding amount. As said above the statement for 2009/2010 never received it, even though i requested it under section 77a. If the creditor fails to give the debtor an annual statement, then he is not entitled to enforce the agreement during the period of his noncompliance and the debtor is not liable to pay any interest during this period.

[mar1kos]

Re: Bank taking me to court advice needed

Any suggestion ???

[Guest]

Re: Bank taking me to court advice needed

HI

I don't know if this is still on-going, or if you still require any further advice/opinion.

For what it is worth, the creditor is under no obligation to keep a copy of a default notice.

IF you raise the question of if a notice was issued, the judge will make a ruling based on the most probable scenario, given the history you describe and the time between default and enforcement , i would consider it highly unlikely that the judge would find that no notice was issued( in my opinion.)

I also believe that the section 77 request issue would be of no assistance if an agreement is produced at the hearing.

The failure to produce annual statements would preclude them from charging contractual interest during the period of the breach (section 77a)but since you were no longer under the original contract anyway i do not think that it would make a significant difference to the outcome.

I think that if you are defending only on the points shown on here, you should change your plea and offer a payment, supported by an income and expenditure statement on your admission.
Hopefully this may prevent a forthwith judgment

D