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

[Amethyst]

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

I think possibly

''I managed pay the lawful arrears due of £804.90 on 29th March 2011 bringing the account up to date.''

wants weakening...(IMO)

On 29th March 2011 I managed to pay the arrears I thought had built up on the account in order to bring the account up to date


As your argument is that you didn't know the DN was faulty and scrabbled about to get as much as possible despite them blocking your account access etc and thought if you sorted out the few missed payments you would be able to get back on track with a repayment plan. You since learned they were the actual arrears and all that should have been asked from you in the first place. Formal way sounds a little calculating.

Also you havent explained any reason the bank gave for this action ''
9. In a letter dated 19th March 2010 (xxx/10) the claimant froze my personal current account. This action was taken by the claimant despite the fact that the correct prescribed time for remedy had not yet expired removing a source to pay the true arrears.''

they could argue it was completely unrelated - so had they told you it was due to the arrears / intended to offset the payment etc etc ?


The payment plan does mean it gives them the right to terminate as you arent sticking to the agreement etc so you are looking more at the unfair relationship and 664 guidelines more than the DN - don't get too caught up in the DN issue.

If you had paid the true arrears within the 14 days and then returned to full payments this would be cut and dried. So you need to make sure that it comes across you tried your best to get on top of it despite all the barrier they put in your way.

I think possibly in this sentence


14. In a letter dated 30th June 2010 I wrote to The Claimant with a new income and expenditure sheet offering an increased payment to them of £135.80. This letter was delivered by recorded delivery on 1st July 2010

You want to mention what the actual contractual payment should have been - if not there then at the beginning of the WS. even in the £804 para (show how you worked out 804 was the true arrears)

[toomanycalls]

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

Any comments on the above WS before I revise the strikeout application, I want to get one bit right before I do the other as they obviously bounce off of each other.

[toomanycalls]

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

Revised draught 2 for the witness statement with advised revisions and some extra bits towards the bottom regarding the bank lending code, cputr, section 140 etc

All comments welcome

WITNESS STATEMENT

I, toomanycalls, of xxxxxxxxxxx am the defendant in this case. I am a litigant in person I make this witness statement in support of my application to strike out the claimants claim.

The matters referred to in this witness statement are within my own knowledge, matters of law and fact with regard to the Consumer Credit Act and associated legislation and legal authorities have been obtained by reference to limited legal advice and research by my husband upon whom I have relied to set out my defence and this application.

All exhibits are referred to as such (XXX/XX) and are attached. The Consumer Credit Act 1974 is referred to for brevity as The “Act” .

1. On 10th March 2010 the claimant served on me by post, a Default Notice (xxx/8) under S87 (1) of the Act and which was dated 4th March 2010. After advice and research I found the default notice to be seriously flawed in several respects as detailed below which made it invalid and did not give the claimant the right to take “the next step” ( to claim entitlement to the benefits of s87) .

(a) The claimant failed to state the correct date allowing for time of service by which the alleged breach was to be remedied.

(b) The default notice did not state the amount of arrears that were outstanding

(c) The default notice demanded payment of the full balance of the account £20697.54 and by being grossly overstated was comprised of sums not yet due to be paid under the agreement.

(d) The construction of the Default Notice was such that I would be unable to lawfully comply with it and that if I did comply with it then it’s prescribed Intent and Purpose would be defeated.

(e) The default notice failed to allow me the prescribed 14 clear days after the date
of service in which to remedy the alleged breach.

(f) The default notice amounted to an unlawful repudiation by the claimant.

9. In a letter dated 19th March 2010 (xxx/10) the claimant froze my personal current account. This action was taken by the claimant despite the fact that the correct prescribed time for remedy had not yet expired removing a source to pay the true arrears.

10. Despite the restrictions that The Claimant placed on my current accounts I managed pay the lawful arrears due of £804.90 on 29th March 2011 bringing the account up to date.

11. On 6th April 2010 having taken advice on debt management because of my financial circumstances I wrote to The Claimant with a copy of my income and expenditure sheet showing a payment offered of £64.80 per month and requesting that interest and charges be frozen.

12. In a letter dated 12th April 2010 the The Claimant’s in house debt collection department KPR, wrote to me advising they couldn’t accept my offer and if an acceptable arrangement could not be reached they would begin legal proceedings to obtain a county court judgement and charging order. I subsequently phoned them to try and persuade them to change their mind.

13. In a letter dated 20th April 2010 KPR formally accepted my payments of £64.80 for review in three months but interest was still charged on the outstanding balance increasing the total amount outstanding.

14. In a letter dated 30th June 2010 I wrote to The Claimant with a new income and expenditure sheet offering an increased payment to them of £135.80. This letter was delivered by recorded delivery on 1st July 2010

15.In a letter received from KPR dated 8th July 2010 received a formal demand for payment advising that the outstanding balance of £20373.52 should be paid within seven days or reach an acceptable payment arrangement but made no mention to my previous offer.

16. In a second letter also dated 8th July 2010 from KPR gave a final notice stating that as the default notice previously served had not been complied with, they were terminating my account and legal proceedings would commence after 14 days if a satisfactory payment arrangement could not be made.

17. In a letter dated 13th July 2010 sent by recorded delivery received 14th July 2010 I reminded The Claimant of my previous offer dated 30th June 2010 of £135.80

18. In a letter dated 20th July 2010 The Claimant replied to my offer stating that the minimum monthly payment they could accept would be for the full contractual payment of £402.45. This is despite them accepting a reduced payment with frozen interest and charges on my current account with is against guidance of the bank lending code which states “Where possible, firms should operate policies that are consistent for the customer rather than determined purely by account type. In all cases where a customer is unable to make repayments that are sufficient to meet a lender’s minimum requirements for a debt repayment plan, the customer must be given clear information on the effect this will have on their position and the options available. However this should never be in a way that is designed to encourage or pressurise a customer to pay more than they can afford as demonstrated by an income and expenditure statement.”

19. In a letter dated 25th August 2010 KPR wrote to me with a Final Notice before legal action stating the account had been terminated and this was another final opportunity to reach an acceptable payment arrangement even though they had previously told me they would only accept payments of the full contractual amount .

20. In letter dated 26th August 2010 The Claimant sent me another Default Notice which too was invalid giving me a chance to remedy the breach by paying arrears of £1882.65 by 18th March 2010 on an account they had already terminated twice.

21 In a letter dated 20th December 2010 The Claimant advised me that the court proceedings had now commenced.

22. The POC refer to the first default notice of 4th March 2010 which must apply as the account had since been terminated before the fiction of the second default notice..

23. In a letter dated 18th February 2011 The Claimant advised me that the interest charge while I was making reduced monthly payments had been refunded to my account.

24. As such the amount claimed on the POC is incorrectly overstated by £311.94

25. It is also 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.

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—
(a)any of the terms of the agreement or of any related agreement;
(b)the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c)any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).
(2)In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).
(3)For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.
(4)A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.
(5)An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).

26. I contend that The Claimant by refusing to accept my further offers of an increased payment and maintaining their position that only the contractual payment would be sufficient for the agreement to endure, have also acted outside the OFT debt collection guidelines 2006 that state with regard to physical/psychological harassment, in section 2.6 : Examples of unfair practices are as follows part (f) pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so,

27. I contend that the way The Claimant have acted is vexatious and it’s actions contravene the CCA 1974, Bank Lending Code, OFT guidelines on debt collection and CPUTR 2008 and as such request that the court strike out the claimants claim without trial for the reasons stated.

Statement of truth

[toomanycalls]

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

From the OFT debt collection guidelines

Physical/psychological harassment
2.5 Putting pressure on debtors or third parties is considered to be oppressive.
2.6 Examples of unfair practices are as follows:

f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so

[toomanycalls]

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

the effect of setting up the payment plan was to elect to ignore the creditors alleged attempt to repudiate


the creditor will almost certainly use the argument that you could tell from the accompanying letter detailing the arrears that the figure in the DN was a mistake and that you knew that it was a simple mistake- hence the reason why you paid only the arrears in order to remedy it so (IMO) the creditor will argue that you effectively corrected the DN yourself. to the extent that you then fully understood the meaning and purpose of the DN

i think (unless someone has a better idea) that you need to concentrate on arguing that the agreement still endures, and as i said- use the offers you kept making and the "altered" Dn to show the duplicity of the creditor

seems to me that from what you have said- the judge will be firmly on your side and if worse comes to worse he will punish them in the costs department at least

TBH, at the time I had no idea about repudiation and faulty DN's, I phoned them up to try and negotiate and made the payment over the phone and was certainly of the assumption that the agreement endured. Even when they terminated it was only there unwillingness to accept any less than the contractual payment that made us stop paying. I only started looking into possible defence's when the claim turned up.

So if the agreement still endures they have no right to have started the action right? So perhaps this should be an alternative option on the strike out?

[toomanycalls]

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

Just a quick skim so far but check dates and much better to put 24th April 2010 rather than shorthand 24.4.10 date.

12 In a letter dated 12.4.11 the Nationwide’s in house debt collection department KPR, wrote to me advising they couldn’t accept my offer and if an acceptable arrangement could not be reached they would begin legal proceedings to obtain a county court judgement and charging order. I subsequently phoned them to try and persuade them to change their mind.

Thanks Ame, all tips welcome, its good to look like you know what you're doing even if you don't.

[diddydicky]

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

I paid the arrears and set a payment plan in an effort to stop termination. They then terminated anyway.





There was an accompanying letter with the DN that stated the arrears but because this was a loan and not a credit card it was easy to work out as it was two missed monthly payments.

the effect of setting up the payment plan was to elect to ignore the creditors alleged attempt to repudiate


the creditor will almost certainly use the argument that you could tell from the accompanying letter detailing the arrears that the figure in the DN was a mistake and that you knew that it was a simple mistake- hence the reason why you paid only the arrears in order to remedy it so (IMO) the creditor will argue that you effectively corrected the DN yourself. to the extent that you then fully understood the meaning and purpose of the DN

i think (unless someone has a better idea) that you need to concentrate on arguing that the agreement still endures, and as i said- use the offers you kept making and the "altered" Dn to show the duplicity of the creditor

seems to me that from what you have said- the judge will be firmly on your side and if worse comes to worse he will punish them in the costs department at least

[toomanycalls]

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

1f/ is inconsistent with the remainder of the statement- so you should be aware that if you felt that the DN amounted to an unlawful repudiation- you elected - by your subsequent actions (in paying the arrears) to consider that the agreement endured- therefore you cannot state that you considered the agreement terminated

IMO your actions have precluded any reasonable argument that you considered the agreement terminated by virtue of the creditors unlawful repudiation and you should now concentrate on the fact the the agreement endured throughout- therefore the creditors termination was not valid.

I paid the arrears and set a payment plan in an effort to stop termination. They then terminated anyway.

8/ first paragraph i would delete

the creditor will argue that from 10/3 to 30/3 you had ample time to ascertain what the true amount of arrears were and remedy the default before the OD was withdrawn

better (IMO) to remove from them an argument that shows you not to have been doing anything to establish the true amount of arrears and paying them

10/ How did you arrive at the lawful amount of arrears?

There was an accompanying letter with the DN that stated the arrears but because this was a loan and not a credit card it was easy to work out as it was two missed monthly payments.
------------------------------- merged -------------------------------

13/ expand on who KPR are and their relationship to the OC-
------------------------------- merged -------------------------------
14/ i would explain why and how you were able to substantially increase your repayment offer

if you dont have an answer for this the other side will justify not accepting your first offer

The wife got a new job.

which DN is referred to in the POC?

The first one.

the first citing the full amount of the account?

Yes

or the second?

No the first one.

if it is the second- have the OC mentioned the first DN anywhere in their POC or any statements?

your answer will affect paras 20/21 which may need re writingh/part deleting

25/ ADD......and the claimant does not have a cause of action to claim earlier payment of sums that were not yet due under the agreement.

the creditor, having failed to comply with the requirements of s87 of the CCA has not at any time become entitled to terminate the agreement and/or claim earlier repayment of sums not yet due under the agreement

[diddydicky]

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

13/ expand on who KPR are and their relationship to the OC-
------------------------------- merged -------------------------------
14/ i would explain why and how you were able to substantially increase your repayment offer

if you dont have an answer for this the other side will justify not accepting your first offer
------------------------------- merged -------------------------------
which DN is referred to in the POC?

the first citing the full amount of the account?

or the second?

if it is the second- have the OC mentioned the first DN anywhere in their POC or any statements?

your answer will affect paras 20/21 which may need re writingh/part deleting
------------------------------- merged -------------------------------
25/ ADD......and the claimant does not have a cause of action to claim earlier payment of sums that were not yet due under the agreement.

the creditor, having failed to comply with the requirements of s87 of the CCA has not at any time become entitled to terminate the agreement and/or claim earlier repayment of sums not yet due under the agreement

[diddydicky]

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

1f/ is inconsistent with the remainder of the statement- so you should be aware that if you felt that the DN amounted to an unlawful repudiation- you elected - by your subsequent actions (in paying the arrears) to consider that the agreement endured- therefore you cannot state that you considered the agreement terminated

IMO your actions have precluded any reasonable argument that you considered the agreement terminated by virtue of the creditors unlawful repudiation and you should now concentrate on the fact the the agreement endured throughout- therefore the creditors termination was not valid.



8/ first paragraph i would delete

the creditor will argue that from 10/3 to 30/3 you had ample time to ascertain what the true amount of arrears were and remedy the default before the OD was withdrawn

better (IMO) to remove from them an argument that shows you not to have been doing anything to establish the true amount of arrears and paying them

10/ How did you arrive at the lawful amount of arrears?

11/ ADD - "because of my financial circumstances"

[Amethyst]

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

Just a quick skim so far but check dates and much better to put 24th April 2010 rather than shorthand 24.4.10 date.

12 In a letter dated 12.4.11 the Nationwide’s in house debt collection department KPR, wrote to me advising they couldn’t accept my offer and if an acceptable arrangement could not be reached they would begin legal proceedings to obtain a county court judgement and charging order. I subsequently phoned them to try and persuade them to change their mind.

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

[toomanycalls]

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

Thank you both for taking the time. I have all copies, I'm just off out for a bit but wanted to post this first draught of my WS for you both to have a look at as it also fills in some more detail.

IN THE xxxx County Court CASE No XXXXXX

BETWEEN:-

NATIONWIDE BUILDING SOCIETY (XXXXXX)*

AND

Toomanycalls

WITNESS STATEMENT

I, toomanycalls, of xxxxxxxxxxx am the defendant in this case. I am a litigant in person I make this witness statement in support of my application to strike out the claimants claim.

The matters referred to in this witness statement are within my own knowledge, matters of law and fact with regard to the Consumer Credit Act and associated legislation and legal authorities have been obtained by reference to limited legal advice and research by my husband upon whom I have relied to set out my defence and this application.

All exhibits are referred to as such (XXX/XX) and are attached. The Consumer Credit Act 1974 is referred to for brevity as The “Act” .

1. On 10.3.10 the claimant served on me by post, a Default Notice (xxx/8) under S87 (1) of the Act and which was dated 4.3.10. After advice and research I found the default notice to be seriously flawed in several respects as detailed below which made it invalid and did not give the claimant the right to
take “the next step” ( to claim entitlement to the benefits of s87) .

(a) The claimant failed to state the correct date allowing for time of service by which the alleged breach was to be remedied.

(b) The default notice did not state the amount of arrears that were outstanding

(c) The default notice demanded payment of the full balance of the account £20697.54 and by being grossly overstated was comprised of sums not yet due to be paid under the agreement.

(d) The construction of the Default Notice was such that I would be unable to Lawfully comply with it and that if I did comply with it then it’s prescribed Intent and Purpose would be defeated.

(e) The default notice failed to allow me the prescribed 14 clear days after the date
of service in which to remedy the alleged breach.

(f) The default notice amounted to an unlawful repudiation by the claimant.

8. In a letter dated 6.3.10 (xxx/10) wrote to my wife and I to advise that the overdraught facility of £850 would be removed from our joint account with effect from 30th March 2010 thereby removing an available source to settle the true breach.
9. In a letter dated 19.3.10 (xxx/10)the claimant froze my personal current account .This action was taken by the claimant despite the fact that the correct prescribed time for remedy had not yet expired removing another source to pay the true arrears.

10. Despite the actions of Nationwide on my current accounts I managed pay the lawful arrears due of £804.90 on 29.3.10 bringing the account up to date.

11/ On 6.4.11 having taken advice on debt management I wrote to Nationwide with a copy of my income and expenditure sheet showing a payment offered of £64.80 per month and requesting that interest and charges be frozen.
12 In a letter dated 12.4.11 the Nationwide’s in house debt collection department KPR, wrote to me advising they couldn’t accept my offer and if an acceptable arrangement could not be reached they would begin legal proceedings to obtain a county court judgement and charging order. I subsequently phoned them to try and persuade them to change their mind.
13. In a letter dated 20.4.10 KPR formally accepted my payments of £64.80 for review in three months but interest was still charged on the outstanding balance increasing the total amount outstanding.
14. In a letter dated 30.6.10 I wrote to Nationwide with a new income and expenditure sheet offering an increased payment to them of £135.80. This letter was delivered by recorded delivery on 1.7.10
15.In a letter received from KPR dated 8.7.10 I received a formal demand for payment advising that the outstanding balance of £20373.52 should be paid within seven days or reach an acceptable payment arrangement but made no mention to my previous offer.
16. In a second letter also dated 8.7.10 from KPR gave a final notice stating that as the default notice previously served had not been complied with, they were terminating my account and legal proceedings would commence after 14 days if a satisfactory payment arrangement could not be made.
17. In a letter dated 13.7.10 sent by recorded delivery received 14.7.10 I reminded Nationwide of my previous offer dated 30.6.10 of £135.80
18. In a letter dated 20.7.10 Nationwide replied to my offer stating that the minimum monthly payment they could accept would be for the full contractual payment of £402.45. This is despite them accepting a reduced payment with frozen interest and charges on my current account with is against guidanxce of the bank lending code which states “Where possible, firms should operate policies that are consistent for the customer rather than determined purely by account type. In all cases where a customer is unable to make repayments that are sufficient to meet a lender’s minimum requirements for a debt repayment plan, the customer must be given clear information on the effect this will have on their position and the options available. However this should never be in a way that is designed to encourage or pressurise a customer to pay more than they can afford as demonstrated by an income and expenditure statement.”
19. In a letter dated 25.8.10 KPR wrote to me with a Final Notice before legal action stating the account had been terminated and this was another final opportunity to reach an acceptable payment arrangement even though they had previously told me they would only accept payments of the full contractual amount .
20. In letter dated 26.8.10 Nationwide sent me another Default Notice which too was invalid giving me a chance to remedy the breach by paying arrears of £1882.65 by 18th March 2010 on an account they had already terminated twice.
21 In a letter dated 20.12.10 Nationwide advised me that the court proceedings had now commenced.

22. The POC refer to the first default notice of 4.3.10 which must apply as the account had since been terminated before the fiction of the second default notice..
23. In a letter dated 18.2.11 Nationwide advised me that the interest charge while I was making reduced monthly payments had been refunded to my account.
24. As such the amount claimed on the POC is incorrectly overstated by £311.94
25.I contend that the way Nationwide have acted is vexatious and is against the CCA 1974, bank lending code, CPUTR 2008 and as such request that the court strike out the claimants claim without trial for the reasons stated.



Statement of truth

[Amethyst]

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

I agree with DD on that one. You have copies of both don't you ?

[diddydicky]

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

personalise it as amy has said

what i personally would use to great effect- if i understand you right....is the second DN to show the court that the creditor was not beyond "altering the evidence to fit the crime"

the second DN- with the altered amount but the original date is a Clear attempt IMO to deceive the court and should be made full use of

discredit one part of the claimants case and the rest is under serious doubt (IMO)

[Amethyst]

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

Yes mention the true arrears were paid and the date, and also that you were making repayments for the next three months then offered to up the payments but they refused and went to court.

I'm not overly keen on the strike out app wording, i'd be inclined to cut the hell out of it and make it much briefer and more personal to YOUR situation.

Witness statement should be in your own words, what happened and when....so date recieved DN, date paid, date made payment plan, date offered to up payments, date terminated etc etc.