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

[toomanycalls]

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

We also expect, where possible, consistent concessions policies to be applied for customers holding more than one product type with an individual firm.

During this review we identified that one firm was allowing concessions on certain products but had not made systems changes to allow this to happen across its entire account range.

From your link, almost shouts the name of this bank in it's description of what they do and what they should do...

[toomanycalls]

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

OK, back to my current situation.

Brief recap for anyone just joining in or forgotten.

DN Mar 2010 giving 14 days, no time for service requesting full balance to be paid about £20k instead of actual arrears of £800
I paid the arrears a week outside the 18 days.
The following month set up a payment plan for three months with a review set for that period.
They ignored my increased offer after three months, demanded the contractual payment and unlawfully terminated.
Issued proceedings in Dec, outline defence filed along the duff DN route so only arrears are now due.
AQ received today.

I think the best way forward right now is to go for a strike out as no right of action but have no idea how to go about it?

Any other points of view or suggestions.

[Amethyst]

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

What would the actual arrears be now tmc ? (if the contract had endured and you hadn't paid since trying to up your payments)

I think I'd be looking more at the oft 664 and lending code type issues than the DN but use the DN service time referencing Harrison to get back to an arrears due and agreement reinstated.

I'm still unsure if you can pay the arrears and make payments on the contract as was and if that is the best way to go for your circs....

This lending code stuff out today could be pretty damn useful to your case.

[toomanycalls]

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

As it's a loan the arrears are probably 11 or 12 payments of £400 each less the £200ish I paid on instalments in april, may june last year before they unlawfully terminated.. Quite a chunk.

[Amethyst]

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

1) The DN gave 14 days. It didnt allow time for service. Costa v Incasso said it doesn't need to include service time. Brandon it wasn't decided one way or other. Harrison v Link seems to say it does but I don't know if that part is strong enough (it is a big issue as many many DNs havent included service time in the 14 days).

2) You didn't remedy within the 14 days (even including time for service)

3) The DN was invalid as it asked for sums not yet due.

4) You paid the correct actual arrears say 30 days after the DN was received.

5) They accepted those and accepted a 3 month reduced payment plan from you (formally in wiriting?)

6) At the end of the 3 months you offered to increase the payments, they declined (writing or phone) and terminated off the back of the original DN.

I'm wondering if the payment of arrears you made was the arrears due at date of DN or arrears due at date of payment (ie meaning you were up to date and had remedied)


We know NW will most likely reissue a DN with the correct details on and give you the chance to continue on the agreement. Are you in a position to do that ?

I think the last couple paras in Harrison might help too with regards NW's actions.

Did you do a SAR and get lists of call logs etc ?

[toomanycalls]

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

I'm wondering if the payment of arrears you made was the arrears due at date of DN or arrears due at date of payment (ie meaning you were up to date and had remedied)

The arrears were paid before the next payment was due so yes the account was upto date and the CRF shows this.

We know NW will most likely reissue a DN with the correct details on and give you the chance to continue on the agreement. Are you in a position to do that ?

I may be able to borrow from a relative but this is far from a given..

Did you do a SAR and get lists of call logs etc ?

I never did SAR or s78 this account. It was taken out in 2008 for one so the s78 avoidance stuff would not apply in this case.
------------------------------- merged -------------------------------
From the Harrison V Link

82. Another factor in the opposite direction is the apparently cavalier manner of the sending both of the enforcement notice and the failure to include the requisite document. But that is not something to which I attribute great weight.
83. Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt. I am satisfied that the Claimant’s description of the way that he was hounded by his creditors is essentially correct not least in the use of “non-traceable” telephone calls. It seems to me that such conduct has no proper function in the recovery of consumer debt. Whatever the strength of the suggestion that the courts should only be a last resort, I can see no legitimate comparison between a series of measured warnings which, after full opportunity for response, lead to legal proceedings and what took place. Even more is the situation to be deprecated when it was only well into this action that the Defendant was able to comply with section 78 and thus able to pursue a claim. An inability to comply with section 78 can be no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimant’s life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer’s position this is conduct that should countenanced.

I think is the direction I need to go so that the issuing of a new DN is part of the unfair relationship stuff and all of this could have been avoided if they had followed oft guidelines for debtors in problems like the "overdaught" side of the bank did.

[Amethyst]

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

A SAR would be useful I think, particularly if you dont have the repayment offers etc in writing. Although you could probably ask for these in disclosure but may be worth sending a SAR asking for everything now to Nationwide.

[diddydicky]

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

check the cprs but from memory i think its 31.4.2.- strike out due to defective paperwork and/or no cause of action

[toomanycalls]

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

Thanks DD, found them, its CPR 3.4(2) , is the form I need a N244 application form?

[diddydicky]

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

1) The DN gave 14 days. It didnt allow time for service. Costa v Incasso said it doesn't need to include service time. Brandon it wasn't decided one way or other. Harrison v Link seems to say it does but I don't know if that part is strong enough (it is a big issue as many many DNs havent included service time in the 14 days).

2) You didn't remedy within the 14 days (even including time for service)

3) The DN was invalid as it asked for sums not yet due.

4) You paid the correct actual arrears say 30 days after the DN was received.

5) They accepted those and accepted a 3 month reduced payment plan from you (formally in wiriting?)

6) At the end of the 3 months you offered to increase the payments, they declined (writing or phone) and terminated off the back of the original DN.

I'm wondering if the payment of arrears you made was the arrears due at date of DN or arrears due at date of payment (ie meaning you were up to date and had remedied)


We know NW will most likely reissue a DN with the correct details on and give you the chance to continue on the agreement. Are you in a position to do that ?

I think the last couple paras in Harrison might help too with regards NW's actions.

Did you do a SAR and get lists of call logs etc ?

brandon judge was not concerned with the time for service- his decision was based on (his) beleif that although he had not been given enough time in the DN- the creditor had not in fact terminated until 3 weeks after- thus giving Brandon enough time to remedy

he failed spectacularly in that judgement- in which he (the judge) had the benefit of hindsight........... to explain how brandon was supposed to have the foresight , at the time of receving a DN that did not give him the required time to remedy ....to know when the creditor would in fact terminate (given that the creditor said he would do it at the expiry or after the time given in the DN...

whether brandon ever referred to any house of lords decisions as to the creditor being bound by his word etc- i don't know....but i do NOT think that the judge in Brandon- or anywhere else- has ruled that time for service is irrelevant apart from you say Costa v Incasso i have not seen the costa decision- anyone got a link to it?
------------------------------- merged -------------------------------



you could throw in 3.4.(2) (a) if you think it is worthwhile too!

[toomanycalls]

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

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

[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.

[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.

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

[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