HFC/Restons **WON**CASE STRUCK OUT

[tomterm8]

Hi, I might change a little bit on the wording. Of course, this is very much a draft, and you should put up the particulars of claim etc:

Originally Posted by defence

DEFENCE

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

Situation Before The Action was raised

Before the action was raised I had paid £XXth per month to the claimant or previous creditors as part of a Debt Management Plan for a period of over ten years. I was aware that there were substantial legal reasons that this debt might be rendered unenforceable by law, but had decided to repay the money on purely ethical grounds.

Despite this negotiated agreement, I believe that the Claimant has been adding unlawful interest and charges to the account. The claimant has failed to respond to several legal requests for information, and the claimant unilaterally decided to disregard the debt management plan despite the existance of a statement of affairs that clearly proved that I could not afford to pay more than £XX per month because of undue hardship and despite the requirements of the Banking Code and OFT Debt Collection guidelines to sympathetically consider hardship. Abiding by both documents is an implied term of the contract, since the original company I contracted with was a signatury of the Banking Code, and both original creditor and current creditor are consumer credit license holders, and therefore legally bound to abide by the terms of the OFT Debt Collection Guidelines.

The payments I offered to make were entirely in line with the guidelines offered by major debt charities including the National Debt Line, CCCS and Payplan. To pay more would cause me considerable hardship. Consequently, I ask the court to consider the claimants actions in line with the overriding objective and the duty of all parties to legal action to act responsibly.

Problems understanding the Claim

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

The Claimants’ Particulars of Claim disclose no legal cause of action, that is the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR s.16. In this regard I wish to draw the Court’s attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to and there are no details with respect to the method with which the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the Claimant’s claim.

b) A copy of the purported contract that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served with the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached with claim form.

d) The particulars of claim do not disclose under what terms of the contract they have charged a collection charge.

Consequently, I deny all allegations on the Particulars of Claim and do not know what case I have to meet.


Further to the case, on 16th October 2007 and again on 24th October 2007, I requested the disclosure of information vital to this case from the Claimant, in respect of the alleged debt. The Claimant has failed to produce any of the information requested, and informed me that it would not provide the information before I was required to file this defence.

The information requested amounted to copies of the Credit Agreement and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

The Claimant’s solicitor has indicated that the Claimant requires proof of identification of the Defendant before they will release any information. This appears to be a stalling measure, as they have seen fit to issue a court claim despite their apparent lack of certainty over my identity, demand payments, communicate with me in writing and over the phone, and are entirely aware of who I am. If they are in any doubt as to my identity, they are in serious breach of the Data Protection Act 1998, and in criminal breach of the disclosure requirements in the Consumer Credit Act 1974.

I therefore respectfully ask that the court grants me permission to amend this defence when I have received the necessary information.

Defence of the claim

With respect to the claim, it is denied that I am liable to the claimant as stated in the claim, or at all:



Having requested a copy of the Credit Agreement, which has (thus far) not been produced by the Claimant, I put the Claimant to strict proof that such a document exists, and is in all respects compliant with the Consumer Credit Act 1974. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

The Claimant having failed to produce a copy of a properly executed Credit Agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment. Under s127(3) the court may not enforce the agreement unless a signed document containing the prescribed terms is provided to the court. The Claimant has not seen fit to plead such a document at this stage, despite the legal requirements of the Pre-Action Protocol to provide such a fundamental document in its letter before action.

I put the Claimant to strict proof that any account charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

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 a 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.)

Furthermore the Claimant states that I have an overdue balance under the terms of the contract. In the Particulars of Claim, the Claimant has not explained under what terms of any agreement any sums were due and I put the claimant to strict proof that said monies are due.

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim or indeed to provide a reasonable time period to investigate this matter, I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

[Curlyben]

Thanks for that TT.
I really need to get to grips with defences.

[tomterm8]

Right, any questions?

[tomterm8]

Originally Posted by Curlyben

Thanks for that TT.
I really need to get to grips with defences.

What I've found is that every time I write a defence, I've learnt something new. You can definatly see the difference between early defences, and my recent ones.

Jump in, the waters lukewarm And, if you've got someone to check them over, you can't make too many mistakes.

[Bug]

Thanks, pt. Sorry don't know how to pm - could you tell me please?

Thanks too tomterm ... give me a little while to work my way through the defence then if I have any questions, I'll come back to you if that's okay

Cheers

[pt2537]

hi bug,

yep not a problem, if you click on my name above the Platinum Account Customer bit it will take you to my profile, click on the link on the right hand side which says send a private message to pt2537 and go from there

its near the bottom on the right hand side under contact info

i hope that helps

Regards
paul

[pt2537]

Hi Tom

Ive gotta get my defence writing skills in consumer credit litigation up to speed to .

may be speaking to you later for some pointers

Regards
paul

[Bug]

Look what I've just received......

Dear (Bug)


Further to our conversation of yesterday, I confirm that our client requires proof of identity before supplying you with the information requested.

Miss S L Jones
Litigation Executive
Restons Solicitors Ltd
Trinity Chambers
800 Mandarin Court
Centre Park
Warrington
WA1 1GG

Tel: 01925 661 627
Fax: 01925 417 517
E-mail: slj@restons.co.uk

Still working on that defence, tomterm, it's looking good though.

[pt2537]

unbelieveable!!


complete Ball Hooks

[Bug]

Hi all.

The defence is finished. TT - I've not done much on top of yours but to add some figures/dates and correct a couple of minor typos.

I'll send it off now if that's okay. If I remember correctly, the owness is on me to send a copy to the Claimant's sols?

Thank you to all of you for your input and be sure I'll keep you informed.

Bug

[Bug]

I know pt - but isn't it great that they put it in writing!!

[tomterm8]

If you submit it via MCOL, then MCOL will send copies to you. I'm not sure about other methods (i.e. by post, etc) it would be best to phone the court and ensure you are sending the right number of copies.

I generally suggest sending via MCOL if you possibly can, with FAX as the second best route. Make sure you type rather than write your signature (yeah, it is valid in english law to do so)

[Bug]

Yes, it went in via MCOL, that way I got a date/time it was uploaded so I printed it out. I think it might be an idea if I sent a copy to Restons - they do have a habit of saying they haven't received things.

Cheers.

[tomterm8]

Originally Posted by Bug

Yes, it went in via MCOL, that way I got a date/time it was uploaded so I printed it out. I think it might be an idea if I sent a copy to Restons - they do have a habit of saying they haven't received things.

Cheers.

Doesn't matter. don't waste your money posting it / faxing it to them.

the defence will be served by the court. If restons don't recieve it, it's their problem, not yours.