HFC-No Agreement? - Amended defence help please **WON**

[robcag]

Originally Posted by pt2537

verbatim from the Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) so there we have it

GAME OVER

the default fails to comply and is invalid

Thanks Paul, excellent news!

What do you suggest I do now to either move things on or block Restons threat (if they carry it out) to apply for Summary Judgement, bearing in mind that I only entered a very simple "holding" defence as I was not in possesion of any of the documents which Restons have now sent me.

My defence was as follows:

1. This Defence is filed and served without prejudice to the right of the Defendant to apply for summary judgment in respect of and/or to strike out the Particulars of Claim.

2. The Defendant does not recall ever receiving or signing an agreement under the Consumer Credit Act 1974 regarding the alleged debt.

3. Under the Consumer Credit Act 1974 (Sections 77 to 79) the Defendant is entitled to receive a copy of their signed credit agreement on request.

4. The Defendant wrote to the Claimant on3rd October 2007 enclosing a statutory £1 fee to request a signed copy of the agreement, under section 77 to 79 of the Consumer Credit Act 1974.

5. The Defendant is now waiting for this request to be fulfilled. In the event that the Claimant fails to do so within 14 days of the service of the Defence then the Defendant will apply to the Court for an Order striking out the Particulars of Claim.

6. The Defendant reserves the right to plead further to the Particulars of Claim once and if the Claimant produces the original agreement. In the meantime, it is denied that the Claimant is entitled to the relief claimed or any relief whether as pleaded or at all.

I believe I now need to enter an Amended Defence? Please clue me up on how I go about this!

Thanks
Rob

[pt2537]

Hello Rob,

im kinda busy today but i will help where i can, ive got another defence to get finished this evening,

did you have anything in mind for your defence?

if you want to post a draft i will happily go over it for you and suggest amendments should they be needed,

the issues surrounding the invalidity of the default i have taken from the judgment in Woodchester Lease Management Services Ltd v Swain
and Co - [2001] GCCR 2255

i have all the relevent case law and regulations so if you pm me an email address i will send them to you

regards
paul

[pt2537]

also to amend your defence you need to use a N244 form i do believe

http://www.hmcourts-service.gov.uk/c.../n244_0400.pdf

[robcag]

Originally Posted by pt2537

Hello Rob,

im kinda busy today but i will help where i can, ive got another defence to get finished this evening,
Hi Paul, sorry to keep intruding on your time and to upset your concentration on your other work, but I appreciate any help you are able to give.

did you have anything in mind for your defence?
As I see it at the moment there are three possible basic prongs to the attack (attack being the best form of defence ).

1. Invalid Default notice due to insufficient time (less than 14 days) being given to remedy.

2. Invalid Default notice due to default sum including unlawful penalty charges.

3. No executed agreement produced, only an application form.

Presumably it would be best to use all three of these so as to be going to court "fully-loaded" so to speak.

ALSO,
I would like to consider the possibility of entering a counter-claim to claim compensation from the claimant for processing my data without my permission, which might then put me in the position of being able to donate a sizeable percentage of any resulting sum to this site! (Or would I be trying to run before I can walk, and should I leave this part out and maybe make a separate court action at a later date?)

if you want to post a draft i will happily go over it for you and suggest amendments should they be needed,
I will try and construct something from other defences I have read on this site, but I fear reading other defences and doing my own is a different kettle of fish!

the issues surrounding the invalidity of the default i have taken from the judgment in Woodchester Lease Management Services Ltd v Swain
and Co - [2001] GCCR 2255

i have all the relevent case law and regulations so if you pm me an email address i will send them to you

regards
paul

Perhaps you could advise me (aside from the actual defence) what is the procedure for actually submitting an amended defence?

Do I write to the court (manager) and advise him/her that I wish to amend my defence in the light of certain documents now being forthcoming from the claimant?
OR,
Do I actually make some sort of application to the court to submit an amended defence?
OR,
Do I make some sort of application to the court and actually include the amended defence?

Sorry for all the questions, but I don't know anything about this procedure.

Thanks again
Rob

[robcag]

PS
What is the minimum I need to do at this stage to buy some more time and counter Restons possibly applying for Default Judgement?

Would it help if I posted the Order issued by the court on 28 Nov 2007 with its specifications?

Rob

[pt2537]

Hi Rob

Well, personally while i feel you could look at a counterclaim do you feel confident taking this action? this is a question youve gotta ask yourself and feel happy with.

personally i wouldnt unless your 100% on this

now onto the defence, you will need to use a N244 i believe to amend your defence and i believe there is a fee to pay too

right i think the best action would be the invalid default not giving the claimant the right to the action, the failure to supply a valid credit agreement, this is backed by case law and prohibits the court from enforcing an unenforceable agreement

and the penalty charges contained within the default as a final nail in the coffin

regards
paul

[pt2537]

oh and to counter claim costs money too, you would have to pay a fee i believe

[robcag]

Originally Posted by pt2537

Hi Rob

Well, personally while i feel you could look at a counterclaim do you feel confident taking this action? this is a question youve gotta ask yourself and feel happy with.

personally i wouldnt unless your 100% on this
I think at this stage it might be easier to put the counterclaim on the backburner, maybe I could instigate this at a later date after I've cut my teeth!

now onto the defence, you will need to use a N244 i believe to amend your defence and i believe there is a fee to pay too
OK, I have an N244 ready. I'm unemployed ATM and in receipt of income based JSA so I might be exempt from the fee (I already have a EX160 from the court ready to fill in).

right i think the best action would be the invalid default not giving the claimant the right to the action, the failure to supply a valid credit agreement, this is backed by case law and prohibits the court from enforcing an unenforceable agreement
Sounds good to me Paul. I've been working on the defence today since your previous messages starting with another defence you helped someone with. I've been adapting it to hopefully fit my requirements, at the same time as trying to take it all in and make sure I understand it. I will carry on with this task tomorrow and get it posted up here.

and the penalty charges contained within the default as a final nail in the coffin
Good!

regards
paul

Originally Posted by pt2537

oh and to counter claim costs money too, you would have to pay a fee i believe

I'd like to do a counterclaim, but see my answer above. Maybe if I have time I could add one, but I wouldn't want to upset the Judge by giving out the wrong message!
Perhaps I should save it for another day?

Thanks again
Rob

[pt2537]

Originally Posted by robcag

I'd like to do a counterclaim, but see my answer above. Maybe if I have time I could add one, but I wouldn't want to upset the Judge by giving out the wrong message!
Perhaps I should save it for another day?

Thanks again
Rob

right , the easiest thing here for me to do is ask one question, im not trying to talk you out of a counter claim but what would you base you arguement on in the counterclaim?

regards
paul

[pt2537]

Also Rob, is there any chance you could post the Particulars of Claim so i can see what they are claiming

[robcag]

Originally Posted by pt2537

right , the easiest thing here for me to do is ask one question, im not trying to talk you out of a counter claim but what would you base you arguement on in the counterclaim?

regards
paul

Briefly, from what I seem to recall reading in various threads:

If no agreement exists/is enforceable which contains my expressed/agreed permission to process my data and to pass information on to CRAs etc. then the bank/OC/DCA in question have acted unlawfully with regard to the Data Protection Act and have caused me to suffer possible detriment with regard to my credit rating. (And I probably forgot some other things which I have read!).

Rob

[robcag]

Originally Posted by pt2537

Also Rob, is there any chance you could post the Particulars of Claim so i can see what they are claiming

Here you are Paul, hope you can read it OK.

Rob

[pt2537]

ok so they stated very little thats always a good sign,

when does your amended defence need to be submitted?

with regards to the counter claim, my advice, based upon your reply is not now, as you stand you have a strong case, i would hold off any thoughts of Counterclaiming, lets get this cr@p dealt with as to be honest, if i were in your position with this level of monies being claimed rob, id be happy if the court wrote off the debt for me.

has the debt been assigned to a DCA at all? has a dca ever been involved in pursuing this debt.

sorry for the questions but its really important to get the full facts