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

[Amethyst]

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

Yeah it is a bit, I'm not ditching you and will help all I can procedurally etc but don't think I'm the best person to advice on the technical aspects of the DN defence...as I do tend to play safe a little - maybe pop a note on the argumentative recission, repudiation et al thread - or pm diddy or PT and see what they think xxx

I'll have a look through the strike app tmw

[toomanycalls]

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

This bit looks useful as well

Misleading Actions
Giving false information to, or deceiving, customers
7.3 A misleading action occurs when a practice misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the average consumer to take a different decision.

[toomanycalls]

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

Found this from a post OTR the OFT guide to CPUTR 2008

http://www.oft.gov.uk/shared_oft/bus...gs/oft1008.pdf

The most relevant bit to work out whether or not the practice is unfair is page 12



For my case this looks relevant From part 7.11

Failing to honour commitments made in a code of conduct.
7.11 The third category of commercial practices prohibited as
misleading actions is that where:
• the trader has undertaken to be bound by a code of
conduct (or code of practice), and indicates that he
is bound by it in the commercial practice,
and
• the trader fails to comply with a firm and verifiable
commitment in that code,
and
• the average consumer takes, or is likely to take,
a different decision as a result

[toomanycalls]

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

Thanks Ame, it's quiet in here though...

Here is my draught for the N244

http://www.hmcourts-service.gov.uk/c...rms/n244_e.pdf

1 Name - TMC
2 I am Defendent
3 What order are you asking the court to make and whyI am requesting that the court strike out the claimants case.
4 Have you attached a draft of the order you are applying forNo
5 How do you want to have this application dealt withWithout a hearing
6 How long do you think the hearing will last - 1 hour
Is this time estimate agreed by all parties? no
7
8 level of judge?
9 Who should be served with this applicationThe Bank
10 .What information will you be relying on, in support of your application
witness statement
statement of case
Evidence

JSNL/1 default notice
JSNL/8 termination letter
All other referenced letter in the witness statement

The statement of case draught here

IN THE Canterbury 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:*

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.

2. In this case, the applicant 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 JSNL/1) 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 JSNL/1) :-
(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.

3. 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

4. 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).

5. 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.

6. 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
1.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 JSNL/8)

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.

Okeys... will have to leave you to some of the more passionate CCA people for the next bit as basically I'm not fully on board with the defence (sorry) Personally, you are disputing the right they have to bring/enforce the claim through the court due to the faulty DN rather than disputing the sum owed (barring some charges etc), and that seems good enough for at least a stay while they get house in order. IF you were going to pay up the arrears and then returning to the full contractual payments (which you aren't) because you can only do it on a repayment plan, then I think I'd be more behind a strike...as it is I think you'd be as well to get repayments set up now and avoid the costs you face if the judge doesnt agree, and even if he does they dont have to accept the repayment plan and can still terminate contractually and properly under the CCA and go back to court to get the repayment plan under a CCJ and possibly secured with a CO. But obviously you're hoping for a similar outcome to Harrison lol , and you know the risks, so I'll shush xx

I agree its fast track, time estimate -does 4 hours makes it seem too complicated?

I think on the AQ you'd put the strike out request in directions but really it should be a separate application, with the WS and Skel attached to it. I'd stick with doing it separately and just do the basics on the AQ and send them at the same time (with the relevant app fee).

[toomanycalls]

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

Here is a link to the N150 I need to complete for next Monday

http://www.hmcourts-service.gov.uk/c...forms/n150.pdf

I'm thinking

A1 Yes
A2 Yes
A3 Yes
B Local as I'm a LIP
C Yes
D All in dispute
application for strike out - hearing date - TBA
no witnesses
no experts
Track - Fast track as this is a simple claim not requiring the use of multi-track
E estimate no idea here
F directions ?
G -
H -
I - can I use this to attach the WS and a skeleton and ask for the strike out?

[toomanycalls]

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

I think I should apply to strike out but the AQ has to be in on Monday latest and not sure if this now allows time??

[Amethyst]

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

OFT664 I might be tempted to copy the whole lot, but I don't think it is necessary for the CCA.

Letters and anything mentioned in your WS make sure you have copies of.

To me, WS is the facts showing what happened when and why etc....the arguments why this is unlawful etc goes in the skels.

I have got a bit lost though - are you still going for the application for a strike out ?

[toomanycalls]

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

Thanks Ame, I'll take out harrassing.

So for the application for strike out should it just be factual and then a separate skeleton argument or combine the two as I started earlier in the thread?

I'm also beginning to prepare all the copy letters for the WS, where I've referenced the lending code do I need to include a copy of the whole thing and as such the OFT664 and s140 CCA?

[Amethyst]

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

much better, though I might take out the word harrassing

Now on the legality side of things I'm not sure about having para 22 /23/24 umm and 19(f) ref repudiation in the witness statement - it should be more for your skel arguments I think but let PT or someone take a look first. I think when you do your other bits it will become clear what needs to go in the WS and which bits should be kept for legal pleadings.

[toomanycalls]

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

revised para 2 and 3

2. I paid this amount monthly on time until the first missed payment on 2nd February 2010. This was due to the collapse/liquidation of one of my businesses creating a large hole in my finances. This was explained to the claimant’s harassing telephone team on numerous occasions’ beginning shortly after the missed payment. Each time being asked to confirm the same details of what had led to the event of the missed payment.

3. On 2ndMarch 2010 I was unable to make the next payment due and subsequently the Claimant served on me by post a letter dated 10th March 2010, which was a Default Notice (xxx/8) under S87 (1) of the Act and which was dated 4th March 2010.

If that's ok?

[Amethyst]

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

date of first missed payment needs adding para 2 - possibly in where you said monthly on time put before the due date of xx each month, or something like that.

one of my businesses

para 3 - On ? I think I'd change it 'I was unable to make the next payment due on XX date XX and subsequently .... ' received DN on 10th march dated 4th march etc

Should give a better idea to judge of how fast they acted.

Good and I like 14

[toomanycalls]

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

Extra bits added and highlighted in bold, numbering sorted and moved this stuff relevant to the DN to the end. As usual all comments welcome.

IN THE Canterbury 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. In April 2008 I applied for a loan for £25,000 repayable over 84 months at the sum of £402.45 per month at a rate of 9.4% APR. Total amount payable £33,805.80.]

2. I paid this amount monthly on time until the first missed payment. This was due to the collapse/liquidation of one of my business creating a large hole in my finances.

3. On the second missed payment the Claimant served on me by post a letter dated 10th March 2010, which was a Default Notice (xxx/8) under S87 (1) of the Act and which was dated 4th March 2010.

4. In a letter dated 19th March 2010 (xxx/10) the claimant froze my personal current account due to the unpaid balance of my loan 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.

5. On 29th March 2011 I managed pay the arrears I thought had built up of £804.90, the total of the two missed loan repayments, bringing the account up to date.

6. 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. This was against the contractual payment of £402.45.

7. In a letter dated 12th April 2010, 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.

8. 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.

9. 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 but ignored by the claimant.

10. 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.

11. 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.

12. 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

13. 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 contrary to the 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.”

14. At this point unable to resolve my dispute directly with the claimant and unable to reach an affordable payment compromise I decided that the only way forward now the account was terminated was to wait for legal proceedings to commence so that the court could assign an affordable repayment schedule.

15. 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 .
16. 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.

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

18. 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.

19. At this time I researched and sought legal advice on the matter. 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.

20. 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.

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

22. 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).

23. 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,

24. 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

[Amethyst]

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

Yes that's better Glad you get my warblings.

I think, particularly off the back of the Harrison judgment a greater emphasis on unfair treatment is needed.

I would possibly start further back - you come in directly at the default notice part...I think you need to say 1) on x I opened agreement 2) the agreement was for x payable over x at x% etc 3) paid perfectly for ages 4) circs took a dive and missed a couple payments THEN the default notice bit. Also make sure any comms pre default notice are mentioned eg if you phoned to say you were having a bit of trouble.

[toomanycalls]

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

Thanks Ame

9 & 10 now read

9. In a letter dated 19th March 2010 (xxx/10) the claimant froze my personal current account due to the unpaid balance of my loan 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. On 29th March 2011 I managed pay the arrears I thought had built up of £804.90, the total of the two missed loan repayments, bringing the account up to date.

With reference to what you wrote in relation to 14 I thought it would be easier/better added at 11. which was the first negotiated payment.

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. This was against the contractual payment of £402.45.