Urget help please - court on Friday v 1st credit

[martinm112]

Hi, looking for some help please.

I recieved a summons on 14th July that 1st credit were taking me to court over an old Associated credit card.

I sent their solicitors a request for information letter (by special delivery I have the electronic receipt), but received nothing back from them.

I returned the form to court on the return day stating that i wished to defend this action, but having received no information I could not file a counter claim at this time, but would like to retain the right to do so.

Situation is now I am due to go to court on Friday, and have no information, and no idea what to do or say.

Any help greatly appreciated.

[42man]

This should help you....I presume your case is with regards to a CCJ ??

In the xxxxxxxx County Court
Claim number

Between

xxxxxxxxxxx- Claimant

and

you - Defendant



Defence

1) 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 pursuant to Civil Procedure Rules (“CPR”) Part 16.5.

2) 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 accounts referred to, the method 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 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 as laid out in Practice Direction 16. Paragraph 7.3.
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.




The Credit Agreement
4) On the xx/xx/2007 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.


5) For clarity, s77(1) CCA states:-


77. Duty to give information to debtor under fixed-sum credit agreement.
— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a) the total sum paid under the agreement by the debtor;
(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and
(c) the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

6) S77(4) of the CCA sets out the consequences of failure to comply with such a request and states:-

(4) 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.

7) XXX have made no reply to this request.

Therefore it is averred that XXX has failed to discharge their obligations under s77(1) of the CCA and as a result has no right of action, by way of s77(4) of the CCA, to enforce this agreement while their non compliance continues.

Enforcement of the Agreement
9) For a credit agreement to be enforceable it must contain all of the prescribed terms as laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)
10) The courts attention is drawn to the fact that where an agreement does not have the prescribed terms required by the CCA then it is not compliant with section 60(1) CCA and therefore not enforceable by s127 (3). The court’s 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

11) With regards to the Authority cited in point 9, 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.”

Failure to disclose documents relied upon in the Particulars of Claim
12) Further to the case, on xx/xx/xx I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and 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.

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.

14) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists

Default Notice
15) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.

16) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.

17) Without prejudice to the above, I put the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

1 For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security

19) I note the opening part of section 88(1) CCA, which states:-

88. Contents and effect of default notice.
- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

20) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

21) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

22) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”

23) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

Conclusion
24) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

25) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

26) In view of the matters pleaded above, I respectfully request that the court dismisses this vexatious and unlawful claim or sets aside.

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 11 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

2 In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

It must also be noted that.

2) MBNA Abbey claim to conform The Banking Code,and as such I will draw your attention to s13.6, reference information you may NOT pass on,IF an account is in dispute.

3) I am also sure that (MBNA)Abbey are fully au fait with the, Office of Fair Tradings code for
Debt Collection Guidance,and I draw your attention to the latest information from their publication,July 2003(updated December 2006);-

The following are deemed to be at the very least UNFAIR practices.

a) Section 2,2 b,Leaving out or presenting information ,in such a way that it creates a false or misleading impression .or exploits debtors’ lack of knowledge.

b)Psychological harassment,as described in Section 2.6 g,making threatening statements or gestures ,or taking actions suggesting harm.
Your last paragraph of your letter threatening collection agencies etc.

c) Section 2.6 h,Ignoring or disregarding claims ,that debts are settled or disputed ,and continuing to make unjustified demands for payment.

d) Section 2.6 I,Disclosing or threatening to disclose,debt details to third parties ,unless legally entitled to do so.

e) Section 2.6 k,Not ceasing collection activity whilst investigating a reasonably queried or disputed debt

I can only assume that based on the above,that this letter must have been sent in error,as I am certain you would not wish it to be seen as VEXATIOUS and UNLAWFUL




Statement of Truth

I, believe the above statement to be true and factual

[42man]

You also need to state that you believe that there could possibly be substantial charges that had been added to the account and that it is not uncommon for debts to be made up entirely of excessive charges....

Don't forget to claim your costs too...as they have not complied with your Civil Procedure Request for information so that puts them at fault....!!!

[martinm112]

Thanks for help , will keep you posted on how i get on.

[martinm112]

Update as of 2 minutes ago.

Just telephoned court to find out what time to attend tomorrow, and clerk informed me that 1st Credit has lodged a minute that if I submitted a defence the case was to be dismissed with no costs to myself, and since I returned form stating i was going to defend claim, the case wouldn't be called and it was dismissed.

Stupid question, but does that mean I've won and this matter now finally closed? And will they take this off my credit file automatically, or do I need to do anything? Thanks again!

[martinm112]

Another thought just came to me if indeed I have won. This lot have basically been at it, hoping I wouldn't defend while knowing they didn't have a leg to stand on. Lesson here for anyone who thinks its not worth defending a claim against you.

[42man]

What amazes me is that they have been allowed to stick a note next to it saying if a defence is submitted then drop the case....If it was me i'd turn up and claim my costs !!!

[42man]

And well done Martin....!!!

[PGH7447]

Cheeky barstewards

and well done

[martinm112]

Originally Posted by 42man

What amazes me is that they have been allowed to stick a note next to it saying if a defence is submitted then drop the case....If it was me i'd turn up and claim my costs !!!

Now theres an idea, the pesimist in me was telling me to go anyway, just to get something in writing.

[martinm112]

Originally Posted by PGH7447

Cheeky barstewards

and well done

Couldn't have done it without the help I got off this site, a big thanks to all who have contributed. I reckon it was the request for information letter sent to their solicitors wot done it

[veryweary]

Excellent news. Really pleased to read this.

1stCredit are such an aggressive company. Their business motto seems to be use all or any methods to get a fast results(payment), quickly spend their ill gotten gains buying even more debt and so keep making their big profits.

If they can't force the issue on quick payment they want charge orders, thereby turning unsecured debts into a secured debts. What a sick way to make a profit. They seem to have no regard for any individual circumstances.

Hopefully they'll go the way of all greedy businessmen, expand too quickly, ( particularly in Spain where I think they've just invested in more debt) and go bust..