Court Hearing 25th Feb...Help Please **WON** CASE STRUCK OUT

[illonavamp]

OK it's shaping up to look like this:

DEFENCE

The Defendant states that the alleged debt against which the claim has been made is unenforceable. Additionally the Defendant states that the Claimant has acted unlawfully by way of serving a Default against the alleged debt at a time when the account was clearly in dispute.

1) The Defendant objects that the Claimant's statement of case does not comply with the Civil Procedure Rules Part 16 in that a copy of the purported written agreement between itself and the Defendant, which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

SUPPORTING DOCUMENT ATTACHED MARKED
a) Civil Procedure Rules Part 16
b) The document attached to the court claim served 1st May 2007


2) The Defendant has repeatedly requested a copy of the written agreement cited by the Claimant in its Particulars of claim (the first request being 19th February 2007), along with other such documentation in respect of the Defendant's alleged indebtedness to the Claimant, under a Data Protection Act 1998 Section 7 "Right of Subject Access" request. The Claimant has failed to comply. Whilst the Claimant fails to comply with such demand any agreement would be unenforceable in its entirety by virtue of section 77(4) of the Consumer Credit Act 1974.

SUPPORTING DOCUMENT ATTACHED MARKED
c) Subject Access Request letter sent 19th February 2007
d) Copy of letter from Claimant dated 18th June 2007 showing 119 days elapsed until ‘a document’ was produced.
e) Copy of a letter from Claimant stating that they are not in possession of a valid Consumer Credit Act Agreement



3) The Claimant continues repeatedly to produce a document purported as being an executed agreement for a completely different account which does not relate in any way to the account against which the Claimant has issued its proceedings.
SUPPORTING DOCUMENT ATTACHED MARKED
f) Copy of attachment from Claimant sent with letter dated 18th June 2007
g) Copy of the same attachment sent a second time on the 11th December 2007

4) The document finally submitted to the Defendant contains no prescribed terms what so ever, there no part referring to any terms and conditions. It is a (pre-contractual) application form that has less information on it that a credit card application. The Defendant therefore submits that the document produced is in contravention of:
Consumer Credit Act 1974
60 Form and content of agreements
(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a) the rights and duties conferred or imposed on him by the agreement,
(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
61 Signing of agreement
(1) A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement,

62 Duty to supply copy of unexecuted agreement
(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.
(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.
(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

s.77(4) Consumer Credit Act 1974;
If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

s.78(6) Consumer Credit Act 1974;
If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

***s77/78 do not apply if CCA was sent AFTER court action was started



Consumer Credit Act 2004
No. 1481 CONSUMER CREDIT
The Consumer Credit (Disclosure of Information) Regulations
Manner of disclosure
4. The information and statements of protection and remedies required to be disclosed under regulation 3 must be—
(a) easily legible and, where applicable, of a colour which is readily distinguishable from the
background medium upon which they are displayed;
(b) not interspersed with any other information or wording apart from subtotals of total
amounts and cross references to the terms of the agreement;
(c) of equal prominence except that headings may be afforded more prominence whether by
capital letters, underlining, larger or bold print or otherwise; and
(d) contained in a document which:
(i) is separate from the document embodying the relevant agreement (within the
meaning of regulation 3) and any other document referred to in the document embodying that agreement;
(ii) is headed with the words “Pre-contract Information”;
(iii) does not contain any other information or wording apart from the heading referred to in sub-paragraph (ii);
(iv) is on paper or on another durable medium which is available and accessible to the debtor or hirer; and
(v) is of a nature that enables the debtor or hirer to remove it from the place where it is disclosed to him.

5) The Defendant believes the Claimant is in contravention of the banking code by way of serving a Default against the alleged debt at a time when the account was clearly in dispute via several verbal conversations between the Defendant and the Claimant.
Banking Code
13.6 We may give information to credit reference agencies about the personal debts you owe us if:
• you have fallen behind with your payments;
• the amount owed is not in dispute; and
• you have not made proposals we are satisfied with for repaying your debt, following our formal demand.


***The cca was requested 19th Feb, sent to me in June, one month after the proceedings were issued, so should I take out these two?

So hows it look? I've basically taken the points from my original defence and added some meat to the bones.

I think what I will do is ask for the default to be removed when I send a copy of my papers to them, can't hurt to ask.

[mrmarmite]

Change 4 to this, loose bit bout credit card info.

4) The document finally submitted to the Defendant contains no prescribed terms what so ever, there no part referring to any terms and conditions. It is a (pre-contractual) application form nothing more.

delete:
***s77/78 do not apply if CCA was sent AFTER court action was started


delete that banking code part for now, if all goes well you can force them to remove the default or you will take them to court and claim for damages.

there another CCA bit that can go on the very end, i'll try find it tonight, if not 2moz evening.

anyway not bad

[illonavamp]

OK don't worry too much if you can't I think it's as strong as its gonna get. I'll be posting off to claimant tomorrow lunch time by recorded delivery. I'll hand the set in to the court on the way home.

As the 25th is a Monday I have a couple of days to psyche myself up over it.

I've already read relevant CCA stuff twice while at work today - I calm down a lot once I'm confident with what I'm talking about. Big wuss really but I have to suck it up for this case!! Winning this bit is first step really, removal of default is second, return of charges third.

[illonavamp]

Ok this is what's gone:

========================= ========================== ========================== =

DEFENCE

The Defendant states that the alleged debt against which the claim has been made is unenforceable. Additionally the Defendant states that the Claimant has acted unlawfully by way of serving a Default against the alleged debt at a time when the account was clearly in dispute.
1) The Defendant objects that the Claimant's statement of case does not comply with the Civil Procedure Rules Part 16 in that a copy of the purported written agreement between itself and the Defendant, which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

SUPPORTING DOCUMENT ATTACHED
Tab Marked: “Civil Procedure Rules”
Tab Marked: “N1 1/5/07” - The document attached to the court claim served 1st May 2007


2) The Defendant has repeatedly requested a copy of the written agreement cited by the Claimant in its Particulars of claim (the first request being 19th February 2007), along with other such documentation in respect of the Defendant's alleged indebtedness to the Claimant, under a Data Protection Act 1998 Section 7 "Right of Subject Access" request. The Claimant has failed to comply. Whilst the Claimant fails to comply with such demand any agreement would be unenforceable in its entirety by virtue of section 77(4) of the Consumer Credit Act 1974.


SUPPORTING DOCUMENT ATTACHED
Tab Marked: “19/2/2007”
Tab Marked: “18/6/2007” (showing 119 days elapsed)
Tab Marked: “8/11/2007” (letter from Claimant stating that they are not in possession of a valid agreement)


3) The Claimant continues repeatedly to produce a document purported as being an executed agreement for a completely different account which does not relate in any way to the account against which the Claimant has issued its proceedings.


SUPPORTING DOCUMENT ATTACHED
Tab Marked: “18/6/2007” (attachment)

4) The document finally submitted to the Defendant contains no prescribed terms what so ever, there no part referring to any terms and conditions. It is a (pre-contractual) application form nothing more. The Defendant therefore submits that the document produced is in contravention of:

Consumer Credit Act 1974
60 Form and content of agreements
61 Signing of agreement
62 Duty to supply copy of unexecuted agreement
77(4) Consumer Credit Act 1974;
78(6) Consumer Credit Act 1974;
(in attached supporting documentation – “CCA 1974”)

4 (continued) The document finally submitted to the Defendant contains no prescribed terms what so ever, there no part referring to any terms and conditions. It is a (pre-contractual) application form nothing more. The Defendant therefore submits that the document produced is in contravention of:

Consumer Credit Act 2004 No. 1481 CONSUMER CREDIT
The Consumer Credit (Disclosure of Information) Regulations
Manner of disclosure
4. The information and statements of protection and remedies required to be disclosed under regulation 3 must be—
(a) easily legible and, where applicable, of a colour which is readily distinguishable from the background medium upon which they are displayed;
(b) not interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement;
(c) of equal prominence except that headings may be afforded more prominence whether by capital letters, underlining, larger or bold print or otherwise; and
(d) contained in a document which:
(i) is separate from the document embodying the relevant agreement (within the meaning of regulation 3) and any other document referred to in the document embodying that agreement;
(ii) is headed with the words “Pre-contract Information”;
(iii) does not contain any other information or wording apart from the heading referred to in sub-paragraph (ii);
(iv) is on paper or on another durable medium which is available and accessible to the debtor or hirer; and
(v) is of a nature that enables the debtor or hirer to remove it from the place where it is disclosed to him.

END



========================= ========================== ========================== =

[mrmarmite]

OK, well all i can say is good luck and hope all goes very well for you.

keep us posted

[B3rty]

Just a thought the SI.1481 came into force in 2005 is it retrospective?

[mrmarmite]

yes but normally is but if brought up in court it was an oversight on my part, other stuff in defence should be enough on own, but worth a shot.
have to wait and see now.

[illonavamp]

Thanks all, I will most definately keep you posted.

[illonavamp]

OK,

I've just yesterday received the documentation that they intend to use at the hearing on the 25th February.

Their entire claim is counting on the fact that they HAVE sent me a cca and it IS valid, as I suspected. No surprises there.

One other thing I noticed was that in their bundle they have included a letter which I sent to them 'without prejudice' - my understanding was that correspondence with this marking is not allowed to be used as 'evidence' in a court case - is this true or did I dream that?

Oh, my other question was, when they say 'here's the agreement' - how do I respond?
- 'this is not a valid agreement'
- 'this agreement is not an executed agreement'
- 'this agreement does not comply with the consumer credit act'
- or something else?

Thanks

Sam

[illonavamp]

Fingers crossed, big day tomorrow, I'll let you know what happens.



I might even sleep tonight. Maybe.

[remus]

good luck illonavamp

[illonavamp]

OK, didn't win, but didn't lose yet either.

I was basically doing very well with my defence UNTIL the claimants solicitor pointed out that this was a running account, not a fixed account and from there the application form was declared valid as a running account does not have to have terms like credit limit, repayment terms, interest rate on it.

The claimant has now been given five weeks to produce evidence being the terms and conditions on the account at the time of inception (2000).

It was when I pointed out section 60 and 61 of the Consumer Credit Act 1974 that the 'type of agreements to which this relates' was pulled out and things then went awry from there with the running account thing.

Not sure where I can go from here. BUT I DID state everything in my defence as above.

Not the outcome I hoped for but no judgements against me yet.

and p.s. I handled myself surprisingly well, but suitably shut my mouth when the running accounts thing was being discussed as I didn't have the relevant knowledge of Law to argue that part.

Anyway, there you are.

[gh2008]

Originally Posted by illonavamp

I was basically doing very well with my defence UNTIL the claimants solicitor pointed out that this was a running account, not a fixed account and from there the application form was declared valid as a running account does not have to have terms like credit limit, repayment terms, interest rate on it.

wtf :o

It does although they can be airy-fairy such as credit limit will be advised, repayment £5 or 3% per month etc

Originally Posted by peterbard

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)
PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE
CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations
(If you just want to find out, skip the bits in between the stars it’s just some extra information)

**What do we mean by unenforceable?
In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.
Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

How does unenforceable differ from enforceable with a court order only?
When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.
When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

The Prescribed Terms are these

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement
D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.
--------------------------

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D Apply

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
• The money can only be used for the purpose it is given.
• There is no interest on the purchase (the cash price is the same as the total price)
• And there is no advance payment

A is applicable

For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions

A and B apply

For a Hire Agreement

B is Applicable

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.
Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.