**DISCONTINUED** Restons Letter advising withdrawal of set aside claim

[nemesis45]

Re: Confirmation of no Default Notice from original creditor

I was under the impression that you are challenging on the lack of a DN not the NOA?

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Hi OP,

I can see what you're driving at because I once wanted to take a similar step myself, but I was advised by a consumer credit barrister not to take this approach as there was no case law around it.

The case you refer to above only relates to equitable vs full legal assignment - most DCA's have the sense these days to ensure full legal assignment when they purchase the debt from the creditor.

In reality, the fact that the DCA cannot supply credit to you is unlikely to have an effect as it could easily be argued that once you failed to keep the terms of the agreement (by meeting minimum payment each month as per the terms) then the creditor would have the right to withdraw credit facilities (this is contained in most agreements).

But my advice (and I think that of most on here) would be to stop focusing on this issue and concentrate on the lack of prescribed terms and lack of default notice - these will be your 'silver bullet' as lack of prescribed terms in an agreement dated 1999 will mean it simply cannot be enforced - further, they cannot issue court proceedings without first having issued a valid S87 Default notice - if they were to attempt issue of a DN now, they would need to discontinue and then request the courts permission to re issue a claim based on the same material facts (this is the exact tact I took with a DCA that attempted the same - they sent me a DN approx a month after the court claim was started, so I forced them to discontinue)



Essentially, why complicate matters when you have something so cut and dry?



If you reference the assignment issue the Claimant's solicitor is likely to use this to cloud the somewhat clearer picture relating to the prescribed terms and default - you need to keep it very straightforward (or as straightforward as is possible with the Consumer Credit Act!).

[ncf355]

Re: Confirmation of no Default Notice from original creditor

OP,

I see your point regards strike out app

So, you get the case reinstated (judgment set aside) - once this takes place you would be at liberty to apply for a strike out where it can be shown there case has no reasonable chance of success.

Can you post the actual text you have used for the set aside?

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Actually, when giving it more attention, the case you reference effectively blows the assignment tact out of the water as it ruled a DCA (Link in that case) COULD be a creditor and have a right to claim in the courts even where they only had the rights, not the duties.

As that was in the High Court, any Defence would reference this and the judge would (most likely at least) not give your issue consideration, as the high court ruling would be binding upon him/her

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

Thanks for the advice. I was just trying to cover all bases.
I considered the option the DCA might produce a fake DN of their own, backdated to support their claim.
It is also possible the Judge will not agree with the prescriibed terms issue, since there is always the argument they were supplied together with the agreement.

1. In Goode: Consumer Credit Law and Practice it is stated as follows at 45A.61:
   "Although the definition of 'creditor' and 'owner' in the original CCA 1974, s 189(1) did admit some ambiguity, as reworded following the CCA 2006, it now admits of none. As has been seen above, the definition of these terms has deliberately been made wide enough to encompass assignees of regulated agreements.
   Unfortunately the opportunity was not taken to remove the infelicity on which the General Editor of this work has been commenting since the Act was passed. Section 189(1) defines 'creditor' as 'the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law …' and defines 'owner' in similar terms. As Professor Goode has pointed out, the general law of assignment does not permit the passing by assignment of 'duties' under an agreement and it is only to a very limited extent that duties pass by operation of law. The reality is, of course, that the CCA 1974, while nodding respectfully to the common law of assignment, is providing special rules for the assignment of regulated agreements. Under the CCA 1974, the assignment of a regulated agreement puts the assignee willy-nilly into precisely the same position as the original creditor or owner – there are no limitations on the obligations transferred with the agreement – once the assignment is completed by notice being given to the debtor or hirer, the assignee becomes the creditor or owner for all purposes."
   
   What do you make of that?
   
   I will focus on the Terms and DN. But this issue just got me frustrated because I have not found a definitive answer and mixed reviews. If as you say ther is no case law testing this matter, I doubt a DCA would be prepared to pursue it either.
   
   Thanks again:tinysmile_twink_t2:

[monk_fish_]

Help with Draft Defense

I have a draft defense and was hoping someone would have a run through it and give me some pointers.

PLEEEEAAASSE....... any bored , smart people out there?? Anyone......

[Amethyst]

Re: Help with Draft Defense

lol, where's your defence?

[monk_fish_]

Re: Help with Draft Defense

lol, where's your defence?

Just PM'd you.

[nemesis45]

Re: Help with Draft Defense

seems to be a number of small threads on the same subject causing posts to be missed.

nem

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

im challenging everything i can

[mystery1]

Re: Confirmation of no Default Notice from original creditor

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

M1

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

M1

Thanks. Have had a look at that. Very useful.

[ncf355]

Re: Confirmation of no Default Notice from original creditor

Thanks for the advice. I was just trying to cover all bases.
I considered the option the DCA might produce a fake DN of their own, backdated to support their claim.
It is also possible the Judge will not agree with the prescriibed terms issue, since there is always the argument they were supplied together with the agreement.

Can you scan and upload the docs they have sent you?

Is their a clear link between an agreement document signed by you and and the terms?

[monk_fish_]

Re: Help with Draft Defense

Ok, So it appears I might get more help by just posting this. Kind of hard to solicit advice on something invisible. No need to be paranoid...is there...is there? Is there?

Any input is greatly welcomed. Thanks people.


Draft Defence

1. The Defendant respectfully submits that the requirements which permit the court to set aside judgment have been satisfied. And the Defendant submits a prima facie case has been established for defending the claim, on the basis that:

(i)The Claimant has failed to provide any proof of assignment required under Section 196 of the Law of Property Act 1925
(ii)The Agreement did not contain the required prescribed terms as per “9 section 61 of the Consumer Credit Act 1974 “,
(iii)No valid Default Notice was served on the defendant required under section 87(1) also sections 76(1) and 98(1) of the CCA 1974)

1. The Claimant is seeking to enforce rights under an assigned contract, but the Claimant has failed to provide a copy of the deed of assignment and proof of posting for the notice of assignment, which is required to comply with Section 196 of the Law of Property Act 1925. The Claimant has not produced this evidence and the Defendant submits that the Claimant has no legal rights under the agreement.

1. On 03/092014, 19/09//2014, 29/01/2015 the Defendant requested copies of the Assignment agreement from the Claimant. The Claimant has not complied with these requests.

1. Lord Denning states in Van Lynn Developments v Pelias Construction Co Ltd. the debtor is entitled to "view the sale agreement to ensure that the assignee can give him good discharge under the contract."

1. In HFO Capital Ltd vs MR Burney [2011], District Judge Hill made it clear it was detrimental to the Claimant where there was an evidential gap regarding the issue of assignment. The Judge stated “It is simply not satisfactory for the Claimant's skeleton argument to say on balance of probability there was an assignment. Either there was or there was not. Either it can be shown by documentation or direct evidence from the contracting parties,”……“Yes, of course the standard of proof in a civil case is balance of probability, but I do not have an essential ingredient in this case and in the general circumstances of the matter I cannot be satisfied that it is established that there was such an assignment”

1. The Defendant denies any valid notice of assignment has been served which is a requirement for effective assignment under the Law of Property Act 1925.

1. In HFO Capital Ltd vs MR Burney, [2011] , District Judge Hill states “I conclude again that they are prevented from pursuing at this time a claim because they have failed to serve an adequate notice of assignment.

1. In W. Harrison & Co. Ltd. v Burke and Anr. [1956] 2 All E.R. 169, C.A. It was held by the Court of Appeal that the notice was bad because the date of the assignment was wrongly stated therein, and therefore the legal right to the debt under the hire purchase agreement had not been assigned effectually at law within section 136(1) of the 1925 Act.

1. The Defendant submits that no valid default notice in the prescribed format was ever served, and because no such document was served on the Defendant, the Claimant had no right to seek enforcement through the court.

1. A creditor must under section 87(1) also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement. 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).

1. Nationwide collections department and subject access request team have confirmed that there is no record a default notice was ever served in respect of the above account. The computer log relating to this account from the Nationwide collections department, (which records account activity and interventions), details no entry which records a default notice being issued.

1. The Defendant submits that any assignment of the agreement by Nationwide to Arrow global would be improper since the account would have been transferred to Arrow global while it was still an active Credit Card facility. According to Goode ‘Consumer Credit Law and Practice’, an assigned agreement under the CCA 1974 places no limitations on the assignee’s obligations transferred with the agreement. Arrow Global is not a credit card provider, and it is difficult to reconcile the notion that Arrow Global could perform the obligations and duties carried out by the Assignor. This would be particularly true where a debtor’s breach is remedied.

1. On 22 August 2012 Mr. Justice Hamblen (sitting in the High Court and on appeal) handed down judgment in Patricia Jones v Link Financial Limited [2012] EWHC 2402. This considered whether the assignee of a debt was a ‘creditor’ for the purposes of the Consumer Credit Act 1974 (the “CCA 1974”). The High Court decided that an assignee is a ‘creditor’ under the CCA 1974 and is therefore entitled to enforce the agreement against the debtor.

1. The definition of ‘creditor’, contained in Section 189(1) of the CCA 1974, is “the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor”.

1. In Goode: Consumer Credit Law and Practice it is stated as follows at 45A.61: "Although the definition of 'creditor' and 'owner' in the original CCA 1974, s 189(1) did admit some ambiguity, as reworded following the CCA 2006, it now admits of none. As has been seen above, the definition of these terms has deliberately been made wide enough to encompass assignees of regulated agreements…..……….. As Professor Goode has pointed out, the general law of assignment does not permit the passing by assignment of 'duties' under an agreement and it is only to a very limited extent that duties pass by operation of law. The reality is, of course, that the CCA 1974, while nodding respectfully to the common law of assignment, is providing special rules for the assignment of regulated agreements. Under the CCA 1974, the assignment of a regulated agreement puts the assignee willy-nilly into precisely the same position as the original creditor or owner – there are no limitations on the obligations transferred with the agreement – once the assignment is completed by notice being given to the debtor or hirer, the assignee becomes the creditor or owner for all purposes."

1. It is the Defendant’s case that the credit agreement referred to in the Particulars of claim was not properly executed on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the Defendant

1. Nationwide have been unable to comply with a subject access request to recover a copy of the original agreement. In the absence of the original agreement, the Defendant has provided a copy of an August 1999 issue Nationwide credit card agreement, form number P4339 Aug 1999. It is submitted that the date of this form the shows on balance of probabilities it must be considered to be the same as the original agreement signed by the Defendant.

1. The Defendant recalls this type of fold out application form on display in bank branches and has stated it would be consistent with his usual behavior that he would have taken such a form away to fill in at home rather than filling in the form at the Nationwide branch.

1. Section 61 of the Consumer Credit Act 1974 dictates:
   “(1) A regulated agreement is not properly executed unless—(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,”

1. The Agreement form number P4339 Aug 1999 contains none the required terms set out below:

(i)A term stating the amount of credit (Agreements Regulations reg 6(1) and Sch 6, para 2
(ii) A term stating the rate of any interest on the credit to be provided under the agreement (Agreements Regulations Sch 6, para 4);
(iii) A term stating how the debtor is to discharge his obligations under the agreement to make the repayments (Agreements Regulations Sch 6, para 5).

1. The Agreement P4339 Aug 1999 also contains the words in small print “The Nationwide Credit Card Conditions form part of this agreement”. The defendant submits, this reference to generic external conditions is a clear indication, the Card Conditions are to be found elsewhere and cannot then be considered to be “within the document”. The defendant believes the terms and conditions were perhaps sent with the card.

1. In Emma Carey v HSBC Bank [2009] His Honour Judge Waksman QC, made clear “It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature; “

1. On 27^th September at Kettering Court before District Judge Murray Smith, the Claimant was given until 23 October to file a response to the Defendant’s witness statement which outlined the principles of the defense. The Claimant has still failed to file an affidavit some 3 months later. The Defendant submits, the Claimant has waived the right to defend the application to set aside and the Judgment should be set aside.

[monk_fish_]

Re: Confirmation of no Default Notice from original creditor

No documents have been sent to me. I have submitted a 3rd party agreement from the same time of the inception of my agreement. The SAR revealed no agreement on file.
The text below is from my draft defense.

1. The Agreement P4339 Aug 1999 also contains the words in small print “The Nationwide Credit Card Conditions form part of this agreement”. The defendant submits, this reference to generic external conditions is a clear indication, the Card Conditions are to be found elsewhere and cannot then be considered to be “within the document”. The defendant believes the terms and conditions were perhaps sent with the card.

1. In Emma Carey v HSBC Bank [2009] His Honour Judge Waksman QC, made clear “It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature; “