Bryan Carter, Littlewoods, Fredpay Help needed urgently**WON***

[pt2537]

In the xxxxxxxx County Court
Claim number

Between

xxxxxxxxxxx- Claimant

and

- Defendant

Defence

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx
2. 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.
3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
4. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;
5. 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, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant’s claim.
6. A copy of the purported written agreement 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 attached to the claim form.
7. 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 to the claim form.
8. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet
   Credit account
   
9. The account no xxxxxxxxxxxx referred to relates originally to a Littlewoods catalogue account and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia
   (a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and
10. Therefore, based upon the claimant’s particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.
11. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974
12. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court
13. The Claimant is therefore put to strict proof that such agreement exists
    
    
    The Request for Disclosure under the CPR
    
    
    
14. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement between 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 copy of the Notice of Assignment required to give the claimant a legitimate right of action.
15. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007
16. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person
    
    
    Consequences of Non Disclosure of the agreement
    
17. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant would need to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)
18. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 17 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced
19. With regards to the Authority cited in point 18, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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 default notice
    
    
20. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies
21. It is neither admitted or 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
22. Notwithstanding point 21, 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)
23. 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
    
    Conclusion
    
24. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.
25. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly
26. 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, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines 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. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

Statement of Truth


I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge


Signed …………………

Date

Hi Mike,

this is the first draft of what ive come up with this evening

any questions at all?

and anyone care to comment?

Regards
paul

[mikecymru]

PT that looks great, thankyou.

I have a few questions:-

I just need to fill in the xxxxxs ? nothing else?

This now gets sent directly to the court by special delivery?

what will the court do? how will they take a letter like this?

How and when will BC be notified?

Thanks


Mike

[pt2537]

Hi Mike ,

sorry for the delay in getting back to you, had to do the christmas shopping bit.

right then, the xxxxxxxxx parts require you to enter your personal details

the court will send a copy of the defence to BC,they will then look at the defence and hopefully realise they are peeing in the wind and call a haly yo the case

however that said they,may continue so we have to be prepared

my guess is they were hoping you wouldn't defend and they would win by default

i cant say what will happen next, but if they proceed you will recieve an allocation questionaire which you then give us a shout and i will help you through filling that in

read through the defence and make sure you are happy with it

then the statement of truth will need to be signed, i say read it cause a statement of truth MUST be exactley that to the best of your knowledge

if theres anything you want to check just shout

Happy Christmas

Regards
paul

[mikecymru]

Paul,

It reads just fine in my eyes, If I dont get anything from BC tomorrow I will send this by special delivery tomorrow.

Merry Christmas

Mike

[mikecymru]

PT just one last thing,

Do I need to put anything else with the defence? accompanying letter or any of the forms they sent me?

Thanks

Mike

[pt2537]

not at this stage

the defence is all you need until you get a reply from the court

regards
paul

[rory32]

2 threads merged. Please keep to one thread - it makes your progress a lot easier to follow. Thanks.

[mikecymru]

ok, well in that case I will keep you posted.

Thanks

Rory,

My apologies and thanks

Merry christmas everyone!

Mike

[mikecymru]

Hi Paul,

Just wanted to let you know that we got a letter from Bryan carter to say that they would not be pursuing the matter further.

I havent heard anything since..

Thankyou for all your help

Result

Best regards

Mike

[pt2537]

Originally Posted by mikecymru

Hi Paul,

Just wanted to let you know that we got a letter from Bryan carter to say that they would not be pursuing the matter further.

I havent heard anything since..

Thankyou for all your help

Result

Best regards

Mike

RESULT, im pleased for you

now very important

call the court and make sure they have discontinued the claim.

then keep that letter very very safe

still im very very pleased its the result we were looking for after all

regards
paul

[mikecymru]

yes of course I will call them

I forgot how sneaky they could be..

Thanks

[PeterPiper]

i have used the above procedure TWICE and bryan carters backed off on both accounts.

seems that anyone who fights back with a response they crumble & move onto the next person