Default Re: Me V Bank - defective DN and unfair relationship defence.

[diddydicky]

Re: Me V Bank - defective DN and unfair relationship defence.

As he has apparently waived his rights to the provisions of the Act, you see no reason why further sums should be paid.


Read more at: Me V Bank - defective DN and unfair relationship defence. - Legal Beagles Consumer Forum

i think i would change that to:-

the claimant therefore does not have entitlement to legally enforce the alleged agreement and vy virtue of his unlawful repudiation is entitled only to the amount of arrears existing at the time of the unlawful termination

otherwise i agree- the defence is far too long - just respond in general terms to the POC and keep the rest for the WS
------------------------------- merged -------------------------------

There was a cover letter with the DN which told me the arrears but also easy to work out in this case as it was two monthly loan payments. The DN itself however didn't state the correct amount.

I paid the arrears on the 29th March over the phone, outside of the DN period stated or even as it should have been. The CCA says that if the default notice was complied with it should be treated as never happened, I appreciate that it was outside of the required period but they accepeted the payment quick enough but certainly didn't treat it as having never occurred as they then did a search on my credit file. Probably looking for any equity in my property.

then on second thoughts (and i still stand to be corrected on this) i would have thought that if you can persuade the court that from the attached statement of arrears- you worked out that the sum stated in the DN was a mistake and so paid what should have been paid to remedy the DN- that the creditor therefore unlawfully repudiated following your remedy of the DN

an interesting twist!
------------------------------- merged -------------------------------

There was a cover letter with the DN which told me the arrears but also easy to work out in this case as it was two monthly loan payments. The DN itself however didn't state the correct amount.

I paid the arrears on the 29th March over the phone, outside of the DN period stated or even as it should have been. The CCA says that if the default notice was complied with it should be treated as never happened, I appreciate that it was outside of the required period but they accepeted the payment quick enough but certainly didn't treat it as having never occurred as they then did a search on my credit file. Probably looking for any equity in my property.

then on second thoughts (and i still stand to be corrected on this) i would have thought that if you can persuade the court that from the attached statement of arrears- you worked out that the sum stated in the DN was a mistake and so paid what should have been paid to remedy the DN- that the creditor therefore unlawfully repudiated following your remedy of the DN

if they use the argument that you remedied outside of the DN stated period then you could quote Amex v brandon where the judge accepted that a DN could be remedied outside of the period stated in the DN!!


an interesting twist!

[Lord_Alcohol]

Re: Me V Bank - defective DN and unfair relationship defence.

Much better TMC - also agree with diddy and you could add the bit from Brandon in your WS.

I guess that the OC is relying on his contractual term in which he can claim the balance on default, so you might need to add somewhere (in your WS?) that you understand that CCA74 takes precedence - and make sure the judge accepts this!

If pressed, I would say that that term was not individually negotiated and so you seek the protection of S87 in entirety, being your entitlement under any regulated agreement. That can wait under the hearing though - no need to swamp the judge with too much detail now!

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Thought I should post the POC for reference

The claim is for money due from the defendant under an agreement numbered xxxxx/xxxxxxx regulated by the CCA and between the Bank Ltd and the defendant on 2 May 2008 (the agreement). By a transfer agreement dated the 1st Feb 2010 and between Bank Ltd and the claimant the claimant aquired all if the assets of Bank Ltd including the benefit of the agreement, NOA of the agreement was given by the claimant to the defendant by letter dated 1 feb 2010.

Under the terms of the agreement, the Bank Ltd loaned the defendent the sum of £xxxxx to be repaid with interest at a rate of 9.4% by monthly installments of x over a period of x months

By failing to repay the sums due under the agreement the defendent is in breach of the terms of the agreement and the balance of x is outstanding

The Defendant was served with the notice of default under section 87(1) of the CCA on 4th Mar 2010. The defendant has failed to comply with the notice of default and the claimant claims the full amount outstanding under the agreement from the defendant.

The claimant confirms that they have complied with sections III & IV of the preaction conduct practice directions.

DD how much of the defence should I cull?

[Lord_Alcohol]

Re: Me V Bank - defective DN and unfair relationship defence.

If it were me, mine would be along the lines of;

1. Regulated agreement number xxx contains terms and conditions which are subordinate to the provisions of the 1974 Consumer Credit Act.

2. My entitlement to remedy the default according to Part VII of the Act was removed unilaterally by the claimant in his default notice of [date], which demanded the balance as remedy.

3. The lawful arrears of xxx were paid on [date], yet the claimant terminated the contract without entitlement (S87(1)(a)).

4. The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.

5. It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement.

6. It is averred that no sums are due as CCA74 S87(1)(b) precludes any claim for unpaid sums where S88 is not complied with.


then shove the rest in the WS.

Diddy will come up with something much better...

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Para 1. now with DD bits

1) It is admitted that the defendant signed the credit agreement numbered xxxxx/xxxxxxxxx between the defendant and the bank on 2 May 2008 and note specifically that this agreement is regulated by the Consumer Credit Act 1974. I assert that no sums are still due under this agreement as the claimant had no legal entitlement to end the agreement due to a defective notice of default and by virtue of his unlawful repudiation is entitled only to the amount of arrears existing at the time of the unlawful termination and that any arrears due at that time have already been paid off.

Added a date to para 12

12) The claimant wrote to the defendant on 6.3.10 to advise the removal of the defendant’s overdraught facility with effect 30.3.30 thus removing the possibility to pay the default from this funding source.

[Lord_Alcohol]

Re: Me V Bank - defective DN and unfair relationship defence.

I'm not sure how all this squares with PT's high court ruling - I suppose the court could always say that the contract was not terminated (the OC had no entitlement without sending a good DN) but, as the OC dragged TMC to court on an error, the court should look at S140A(1)(b) and declare the entire agreement duff as per S140B(1).

It looks like TMC would have to specifically state this - see S140B(2);

(2) An order under this section may be made in connection with a credit agreement only—

(a)on an application made by the debtor or by a surety;

(b)at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or

(c)at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

(I highlighted the bit that probably applies here).

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

LA,

I like what you've done with the defence so if we take your's as a starting point and make point 5

5. It is further claimed that the claimant forms an unfair relationship as per the CCA 1974 S140A(1)(b) by taking action without entitlement and seeking money where he has no entitlement and thus the court should declare the agreement unenforceable per CCA 1974 S140B(1).

[Lord_Alcohol]

Re: Me V Bank - defective DN and unfair relationship defence.

Er...yes but I wouldn't use the phrase "the court should", just that you seek an order on that basis from the court (otherwise it sounds like you're telling the court what to do).

I would just say;

It is claimed, as per S140B(2), that the claimant has caused the formation of an unfair relationship and I ask the court to consider an order be made for relief under S140A.

Something along those lines...? It would be sensible to support this in your WS but you have plenty of data now to do that and a strongly worded para to that affect would do no harm.

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Could someone explain what this means please

a surety in any proceedings in any court

[Lord_Alcohol]

Re: Me V Bank - defective DN and unfair relationship defence.

Solicitor? Counsel? Someone representing you?

Ah no - it's someone who's legally responsible for the debt.

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Ok, I'll keep what I've already written for the WS so here is the tidied up defence with thanks LA,

1) It is admitted that the defendant signed the credit agreement numbered xxxxx/xxxxxxxxx between the defendant and the bank on 2 May 2008 and note specifically that this agreement is regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the 1974 Consumer Credit Act.

2) The defendants’ entitlement to remedy the default according to Part VII of the Consumer Credit Act 1974 was removed unilaterally by the claimant in his notice of default of 4 March 2010 which demanded the balance as remedy.

3) The lawful arrears of xxx were paid on 29 March 2010, yet the claimant terminated the contract without entitlement (S87(1)(a)) on 8 July 2010

4) The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.

5) It is further claimed that the claimant forms an unfair relationship as per the Consumer Credit Act s140B(2) by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order be made for relief under S140A.

6) It is averred that no sums are due as CCA74 S87(1)(b) precludes any claim for unpaid sums where S88 is not complied with.

7) I believe the above statement to be true and factual to the best of my knowledge

Any other comments?

[basa48]

Re: Me V Bank - defective DN and unfair relationship defence.

Just to clarify the procedures a little.

The initial defence in response to the claim should be brief and concise. It certainly should not refer to any case law and probably not even any sections of the Act. It is enough to refer to the claimants actions being contrary to the Act.

When you have completed the next stage, which will be the AQ there may be a judges directions or a Case Management Conference where directions will be made.

The directions will normally be for both parties to file and exchange WS and disclose documents. The WS can quote sections of the Act and case law you will rely on but not in detail.

The final preparation before the full case hearing will be Skeleton arguments which should be filed with the court maybe a week or so before the hearing. TBH I'm not sure whether you send Skeleton arguments to the opposing party. The skeleton argument should be all your arguments in detail - this is your full case in detail.

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Thanks Basa48, so you think this revised defence is still too much?

At what point to the costs start ramping up on the claimants side as this loan is large so costs will be high?

Am I right in thinking that if I was to lose the costs are payable straight away and won't be added to the "bill"?

If I quote the CCA is that sufficient to state or shold it always be written in full ie Consumer Credit Act 1974 section X (x) ?

[basa48]

Re: Me V Bank - defective DN and unfair relationship defence.

Thanks Basa48, so you think this revised defence is still too much?

It was OK, but I'v taken out the clause references. A judge isn't interested in regs and case law at this stage. See below:

1) It is admitted that the defendant signed the credit agreement numbered xxxxx/xxxxxxxxx between the defendant and the bank on 2 May 2008 and note specifically that this agreement is regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the Act.

2) The defendants’ ability to remedy the default was removed unilaterally by the claimant in his notice of default of 4 March 2010 which demanded the whole balance as remedy contrary to the regulating legislation.

3) The lawful arrears of xxx were paid on 29 March 2010, yet the claimant terminated the contract without entitlement on 8 July 2010

4) The claimant brings his claim to court without entitlement and where the breach was remedied according to the Act.

5) It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order be made for relief under relevant provisions of the Act.

6) It is averred that no sums are due as provisions within the Act preclude any claim for unpaid sums where the Acts requirements are not complied with.

7) I believe the above statement to be true and factual to the best of my knowledge

At what point to the costs start ramping up on the claimants side as this loan is large so costs will be high?

Am I right in thinking that if I was to lose the costs are payable straight away and won't be added to the "bill"?

If the debt is below £5k it is a small claim and costs are very limited. Otherwise costs can add a significant amount. Costs start when the claim form is issued.

If the judgement does go against you you can apply for a time order - essentially time to pay (a dmp if you like).

If I quote the CCA is that sufficient to state or should it always be written in full ie Consumer Credit Act 1974 section X (x) ?

Usually you would refer to the Consumer Credit Act 1974 at the beginning and put in brackets after the quote (hereinafter referred to as "the Act").

[toomanycalls]

Re: Me V Bank - defective DN and unfair relationship defence.

Thnaks Basa

Debt is £20k so costs will be....a lot? If I lose.

I do understand that I will get a payment schedule for the ccj but what about the opponents costs should I lose. Am I expected to pay this immediately or is that factored into the payment schedule?