Right, first draught of the strikeout application, is it necessary to add in anything about unfair relationships or is that contentious at this stage?
Also I received a second termination letter 6 weeks after the first onein August and a second default notice the next day with the correct arrears but a date to rectify of the date shown on the first default notice in March.
Should I mention that the true arrears were paid?
Does all of the above go on the accompanying witness statement?
I also haven't yet written to them inviting them to withdraw or I will go for a strikeout should I? I only have until 14th March to get the AQ in and thought that this application needs to go in first?
IN THE xxxx County Court CASE No XXXXXX
BETWEEN:-
NATIONWIDE BUILDING SOCIETY (XXXXXX)*
AND
Toomanycalls
APPLICATION TO STRIKE OUT
CLAIMANT’S CLAIM
_________________________ _____
1. This application is made in accordance with the Civil Procedure Rules, Part 3.4 on the basis that the plaintiff’s claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:*
2 A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.
3. In this case, the claimant maintains that because of the construction of documents produced by the claimant and upon which their case relies, namely, a default notice (attached and exhibited XXX/3) must fail at law and it is appropriate that their case be struck out without a trial.
The Default Notice issued by the claimant (attached and marked XXX/3) :-
(i) demanded payment of the full balance of the account- which included substantial sums that were not due thereby claiming the benefits of s87 (monies not yet due) and denying the defendant opportunity to rectify any alleged breach.
4. It is submitted that the above Default Notice which was served under s87(1) Consumer Credit Act 1974 failed to comply with the regulations In that it claims payment of £20697.54, being the full amount of the account .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).
(ii) Did not give sufficient time for the defendant to remedy the alleged breach
5. The Default notice supplied by the Claimant is dated Thursday 4.3.10. To allow service in line with the statutory requirements mentioned in points 2 & 3 below, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Monday 7.3.10, namely Monday 21.3.10 not the 14 calendar days from the date of the letter as stated in the Default notice which would have been (4 days earlier).
6. It is in any event denied that the default notice , dated 4.3.10 was served on 4.3.10 as stated in the particulars of claim, or that it was indeed sent by first class post, therefore the Claimant would be put to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach.
7. Under the Interpretation Act 1978 Section 7, it states:*
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."
2. Practice Direction
Service of Documents - First and Second Class Mail.
With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.
1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-
(a) in the case of first class mail, on the second working day after posting;
(b) in the case of second class mail, on the fourth working day after posting.
"Working days" are Monday to Friday, excluding any bank holiday.
3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.
4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.
8th March 1985*
J R BICKFORD SMITH Senior Master, Queen's Bench Division
3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :
Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.
7. The 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 an 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.
8. The regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.
9. In the case of Woodchester Lease Management Services Ltd v Swain & 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 to 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 alleged default. Claimed an amount that contained substantial errors in calculation and which was claiming sums not due and was missing important prescribed text
10. The Claimant’s failure to issue a valid Default Notice prevents a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.
11. There is no provision in the Act that allows the creditor to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.
12. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was confirmed in a letter from the claimants in house debt collection department as having been terminated on 8.7.10 (attached and marked XXX/5)
13. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.
14. I believe the facts stated herein are true.
Signed……………………….. Toomanycalls
BETWEEN:-
NATIONWIDE BUILDING SOCIETY (XXXXXX)*
AND
Toomanycalls
APPLICATION TO STRIKE OUT
CLAIMANT’S CLAIM
_________________________ _____
1. This application is made in accordance with the Civil Procedure Rules, Part 3.4 on the basis that the plaintiff’s claim has no realistic prospect of success (Rule 3.4) and in accordance with Practice Direction 3, part 1.7 which states that:*
2 A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.
3. In this case, the claimant maintains that because of the construction of documents produced by the claimant and upon which their case relies, namely, a default notice (attached and exhibited XXX/3) must fail at law and it is appropriate that their case be struck out without a trial.
The Default Notice issued by the claimant (attached and marked XXX/3) :-
(i) demanded payment of the full balance of the account- which included substantial sums that were not due thereby claiming the benefits of s87 (monies not yet due) and denying the defendant opportunity to rectify any alleged breach.
4. It is submitted that the above Default Notice which was served under s87(1) Consumer Credit Act 1974 failed to comply with the regulations In that it claims payment of £20697.54, being the full amount of the account .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).
(ii) Did not give sufficient time for the defendant to remedy the alleged breach
5. The Default notice supplied by the Claimant is dated Thursday 4.3.10. To allow service in line with the statutory requirements mentioned in points 2 & 3 below, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Monday 7.3.10, namely Monday 21.3.10 not the 14 calendar days from the date of the letter as stated in the Default notice which would have been (4 days earlier).
6. It is in any event denied that the default notice , dated 4.3.10 was served on 4.3.10 as stated in the particulars of claim, or that it was indeed sent by first class post, therefore the Claimant would be put to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach.
7. Under the Interpretation Act 1978 Section 7, it states:*
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."
2. Practice Direction
Service of Documents - First and Second Class Mail.
With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.
1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-
(a) in the case of first class mail, on the second working day after posting;
(b) in the case of second class mail, on the fourth working day after posting.
"Working days" are Monday to Friday, excluding any bank holiday.
3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.
4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.
8th March 1985*
J R BICKFORD SMITH Senior Master, Queen's Bench Division
3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :
Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.
7. The 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 an 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.
8. The regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.
9. In the case of Woodchester Lease Management Services Ltd v Swain & 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 to 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 alleged default. Claimed an amount that contained substantial errors in calculation and which was claiming sums not due and was missing important prescribed text
10. The Claimant’s failure to issue a valid Default Notice prevents a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.
11. There is no provision in the Act that allows the creditor to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.
12. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was confirmed in a letter from the claimants in house debt collection department as having been terminated on 8.7.10 (attached and marked XXX/5)
13. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.
14. I believe the facts stated herein are true.
Signed……………………….. Toomanycalls
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