Would you accept?

ricky_balboa

NID,
i was only looking at the sheet which i signed, didnt realise you were referring to the other page.I havent blanked out my signature on that sheet, the copy sent to me is as you see it.
What if i never signed where the big "X"? does it make a difference?
Why havent they sent me a signed copy of this sheet, if i did sign it?

thanks guys, great advice as always.

GeorgeUK

Just a query, but is that a blank credit card application form they have sent you and another page with your signature? The signed page begins with "J." i think - where's the rest of this document?

ricky_balboa

Thats right George, that is all they sent me.
I was wondering where the part before J was aswell.

GeorgeUK

Hi Ricky, hope this is going okay for you.

I would definately go with 10past6's advice with this, but what they have provided you is definately not a copy of an enforcable CCA.

ricky_balboa

I have started on my AQ which i received from my local court, most of it seems explanatory to me, apart from a couple of points:-


SETTLEMENT :- Should i tick "yes". Ive read about people trying to settle before court, as it looks good to the judge that you dont want to waste the courts time.Im only interested in settling with Nationwide if the case is struck out, but i dont ask for my costs from them, though is this unlikely? In which case i should just tick "no"

FEE :- I take it only the claimant has to pay a fee?, i cant find it written anywhere that the defendant has to.

OTHER INFO:- What do people generally put in this section, should i be referring to my defence letter and expanding on it?
Should i now only be relying on my Default notice situation, or still with the CCA as backup/aswell?

thanks for any advice

Ricky

ricky_balboa

I have also received my Subject access request back from Nationwide, i thought it would contain more that it did.

I received statements going back to the start of the account.
The letters which i sent to them recently, but none of their letters to me.
A chart of all events on this account written in shorthand, detailing phonecalls and actions nationwide have made.

A couple of queries i have with this are:-

1) They have included 2 statements which they have never sent to me, dated Jan 2010 & Mar 2010.This is after the default notice, is there any problem that they didnt send it to me?

2)I made 2 payment through CCCS in the above months which havent been deducted from the total amount i supposedly owe them written on the court papers, is this an issue?

3) Is there anything else they shouldve sent me in the Subject access request, like the default or termination notices?

4) Is there anything worth searching for through the shorthand events chart for?
I see they did a search on my property and for mortgage information, to figure out if they could litigate.

thanks

10past6

Hi Ricky

ricky_balboa wrote: »

SETTLEMENT :- Should i tick "yes". Ive read about people trying to settle before court, as it looks good to the judge that you dont want to waste the courts time"

If you think both parties “may” be able to negotiate some kind of settlement then tick the 'YES' box, whether or not the other parties agree, it's for the court to decide based on the information you submit, alternatively, you could ask the court to postpone the claim for one month in an attempt for both parties to reach a settlement either by informal discussion or by an alternative resolution?

ricky_balboa wrote: »

Im only interested in settling with Nationwide if the case is struck out

If the claim is struck out, there won't be any requirement to settle, struck out means no case to answer

ricky_balboa wrote: »

FEE :- I take it only the claimant has to pay a fee

Correct

ricky_balboa wrote: »

OTHER INFO:- What do people generally put in this section, should i be referring to my defence letter and expanding on it?

Have you sent any defence documents to the claimant?

If so, do you have proof they've received it?

Is your defence based on the claimant being in breach of any Consumer legislation?

Attach all relevant documentation in relation to “your defence” to the AQ

10past6

ricky_balboa wrote: »

I have also received my Subject access request back from Nationwide, i thought it would contain more that it did

[FONT=Times New Roman, serif]Has 40 consecutive days elapsed since making your request? If so, you need to write to them heading your letter “Formal Complaint” give them 14 days to comply with the missing info, if after 14 days your complaint is not resolved to your satisfaction, then register a complaint here[/FONT]

ricky_balboa

Hi all,

Could i please have some advice on the following situation that i am now in, i will summarise the thread/situation first:-

Nationwide defaulted a credit card agreement i had with them and then eventually sent me court papers to make a claim for the amount around £3000.

I filed a defence as the Default notice is not compliant with the correct legislation.

DN:- http://i740.photobucket.com/albums/xx49/slightly78/nationwide%20dispute/IMGedit.jpg

The CCA appears to be ok, but isnt very clear.My main defence is the Default notice.

CCA :- http://s740.photobucket.com/albums/xx49/slightly78/cca%20nationwide/

here is the original POC:- http://i740.photobucket.com/albums/xx49/slightly78/court%20pocs/court1.jpg

My original defence is in POST 90 of this thread.

I then filled in my AQ which included section G - other info as follows:-

Section G - Other Information



As stated in the Claimants Allocation Questionnaire, i note that the claimant has served a revised Default Notice on the Defendant on 11th May.

The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. The Claimant had terminated the agreement once proceedings had commenced if not before, to deliver an effective default notice will involve the fiction the agreement is current and never terminated.

I have enclosed the original Default Notice dated 16/11/2009 (Exhibit D)

I refer to my original Defence letter under the section “The need for a default notice”

The Need for a Default notice

It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

15. Notwithstanding point 14, I put the claimant to strict proof that any default notice sent to me was valid. I note that 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)

16. Failure of a default notice to be accurate not only invalidates the default notice, but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating.
required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

Enclosed (Exhibit C), is the case of Woodchester Lease Management Services Ltd v Swayne & 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 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 default

I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

I have enclosed The Consumer Credit (Enforcement,Default and Termination notices) Regulations 1983 for information and ease of use.


In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4


If the court is in agreement, the defendant respectfully requests that special directions may be given as per the draft order at the bottom of the next page.
The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;
Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

Further to the case, on 08/04/2010 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached to the defendants defence marked Exhibit A), which is vital to this case from the claimant.
Having not fully received the information I have now reissued a further request to the claimant again pursuant to the CPR 31.14.

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment
29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give
notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

The default notice is required by section 88 of the Act to be in the form prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.
Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer
Therefore it stands to reason that these documents must be disclosed before this case can progress any further

Draft Order for Directions

1 The Claimant shall not later than 4:00pm on 27/05/2010 file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim
(a) the executed regulated consumer credit agreement made between the defendant and Nationwide Building society under reference 4493527033995760 together with any terms and conditions that applied to it, the original document must be brought to the hearing.
(b) the default notice together with proof of method of service the original document must be brought to the hearing
(c) the termination notice together with proof of method of service the original document must be brought to the hearing
(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.
2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.
3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and
4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on 24/06/2010.

Then Nationwide decided to send me a new Default Notice which complies with the legislation.
They then filed to amend the Particulars of Claim to the amended Default Notice.

The case was the stayed twice by the judge for 1 month each time.

I have now received a new POC to which i must file a new defence for.The new POC :- http://i740.photobucket.com/albums/xx49/slightly78/court pocs/IMG.jpg




My opinion:- I was receiving alot of great advice from 10past6 and other forumites to help me with my case, but 10past6 no longer seems to be around.
I believe that Nationwide cannot just change the default notice if one has already been issued and they have started court procedures. (Case law example of woodchester v swayne) .I was advised to sit tight with my original defence.has anyone had or know of a similar case where a creditor has changed the default notice?
Do i now just file my defence based on this fact, which i mentioned in my AQ section G (see above).?
Is there anything else i should now include in my defence?
I phoned the court a month ago to find out the situation on this case and was told by a clerk that Nationwide kept asking for a stay but havent provided any other new evidence apart from asking for an amended poc.The clerk said that the judge wouldnt be happy that nationwide would keep this case in limbo and she would speak to the judge on where this case should go now.
Im worried that there is something i shouldve done?

Any advice would be greatfully received as to what my next move should be, thanks in advance.

Ricky

ricky_balboa

just moving it back to the top , as i would really appreciate any advice thanks...bump:)