Lewis Debt Recovery - Next Directory**WON IN COURT**

[pt2537]

http://www.hmcourts-service.gov.uk/c...ms/n9_0406.pdf

that's the form you need, form N9 and tick box one , in my opinion you have grounds to defend all the claim. ultimately its your choice but that would be what id go for

filling in the rest should be easy enough as its personal details etc

Regards
paul

[Anthuk]

Forms sent off today. Getting nervous now!!

[teefee]

Hi there, sorry to intrude on your thread but am looking for some advice. We have various debt probs at the moment and am in the first stages on gping with DMP. awaiting at the minute financial statements to be sent. However, I never ever thought of contesting the debts until reading these threads. My husbands debt with next is in the wrong name. Our surname is Fearon and they have my husbands name as Searon. which they continue to use despite being informed it was incorrrect. Can I use this to my advantage to have the debt removed ?? Can someone advise

[Anthuk]

Bttt

[Anthuk]

Nothing recd back from Cohens. Need help with defence now which is due shortly. Anyone point me in right direction? (have tried again to access this claim via MCOL and it still states that claim number or password incorrect!)

[pt2537]

Hi There

when does your defence have to be with the court?

i have a defence that will most probably cover this on file so no need to panic, you will just need to amend certain parts

regards
paul

[Anthuk]

Thanks Paul.
Court claim was issued 31/12/2007 so presume its got to be 2/2/2008.

[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;


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, 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.

b) 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.

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 to the claim form.

.
5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

Credit account

6. The account no xxxxxxxxxxxx referred to relates originally to a NEXT 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

7. 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.

8. 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

9. 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

10. The Claimant is therefore put to strict proof that such agreement exists

The Request for Disclosure under the CPR

11. 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.

12. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007


13. 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

14. 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)

15. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 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

16. With regards to the Authority cited in point 15, 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

17. 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


18. 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

19. Notwithstanding point 18, 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)

20. 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

21. 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.

22. 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

.
23. 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

ok well i found this in among my defences that i have wrote, it was for a littlewoods case but fits the bill perfectly

you will need to amend the bits which are XXXXXX out, and have a read and any questions ask away


regards
paul

[Anthuk]

That is brilliant Paul! Feel awful troubling you when your little boy is unwell. Hope he is feeling better now.

Will post defence off tomorrow and keep thread updated.

Thanks once again. Feel bit more at ease now I have this.

Cheers
Anth

[pt2537]

No worries, hes ok now, thanks

all you need to do is amend the bits which are XXXXX'd out and enter your details and dates etc

if you need anything then shout

good luck

regards
paul

[Anthuk]

Posted defence off to Court yesterday as had to be there by Monday. Received letter from Cohens today (dated 14/1/08!!) which obviously has been delayed deliberately to frustrate my defence. Included was a cheque for £1 for repayment of my postal order (dated 24/1/08!!!)
Here is wording

We refer to your recent request for information made under sections 77-79 of the Consumer Credit Act 1974. The act makes provisions for a copy of the credit agreement to be provided on request. There is no obligation for any additional information to be provided. If you wish to receive this information, you can make a request under the Data Protection Act. The fee for this information is £10.00

Notwithstanding the above, weare not obligated to comply with your request aswe are not the creditor in this matter. The creditor is Next Directory and we are merely instructed to act on behalf of that company to recover the outstanding balance due.

The obligation to comply with a request to sections 77-79 of the Consumer Credit Act 1974 is that of the creditor, Next Directory. We therefore respectfully suggest that you make your request to that company. I enclose a refund of the £1.00 fee you sent us for this request.

Your correspondence also makes reference to the Civil Procedure Rules governing the provision of information for the purposes of legal proceedings. Again weare not obliged to provide this information and would advise that the particulars of claim detailed in the County Court Claim should be sufficient to allow you to respond accordingly.

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment. Failure to do so will result in a judgement being entered without reference to you.

Yours Sincerely

etc etc'

[pt2537]

well, this is good, because it sets out that they are accepting that Next have supplied credit

so the House of Lords Ruling in the case of Wilson and FCT set out that the lender cannot side step regulation by alternate means. in a nut shell they cannot get around an unenforceable agreement by claiming other grounds like they have here

keep that letter very safe its helpful

[Anthuk]

Do I need to send CCA request etc to Next as per Cohens letter?

[pt2537]

Hi

well, i would certainly do so, and send it special next day delivery as we need it to get there asap.

Dont sign the letter what ever you do,and dont forget the one pound postal order
http://www.consumeractiongroup.co.uk...templates.html

use letter N. now this may not have any such effect on your defence as youve already done that, but if they dont comply then thats excellent because at the hearing, its another nail in their coffin

regards
paul