Sent a CCA Request off to Barclaycard 12 months ago accordingly witheld payments....had a lot of fun with Mercers. Now CL Finance have bought the debt and have issued a claim dated dated 27th October.

My Defence and request for further information is below.

Regards

Howard Cohen

PO Box 110

Cleckheaton

West Yorkshire

BD19 4XT

Dated 4th November 2008

Dear Sirs

I acknowledge receipt of your County Court Claim dated 27th October 2008.

I enclose with this request my defence. However, I seek the courts permission to amend the defence once I have received the requisite information requested herein.

Please note that under the Overriding Objectives, you have a duty to act reasonably at all times.

As you are aware, under the pre-action protocols of the Civil Procedure Rules, your letter before action should have included the following information:

4.3 The claimant's letter should —

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(For many claims, a normal reasonable period for a full response may be one month.)

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

I note that your letter failed to enclose copies of the essential documents upon which you will seek to rely, failed to ask for acknowledgement of the letter, failed to ask for a written response within a reasonable period of time, and did not draw attention to the courts powers

to force all parties to comply with the practice direction.

I intend to provide you with a full written response, but as yet I have not got adequate information to investigate your claim.

To enable me to investigate this claim I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

If you fail to disclose this information, I may apply to the court under Part 18 and part 31 of the civil procedure rules.

I will be unable to respond to your claim without this information, and by failing to supply it before starting legal action you would breach the overriding objective of the Civil Procedure Rules.

Request for disclosure;

I request that you send me information vital to investigating your claims, including:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual

intervention in relation to my account formerly held with HFC Bank Ltd.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money as per Law of property Act 1925.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you will seek to rely upon in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

Please note, I will respond to your claim in full within 14 days of your providing this information. I must advise you that if the information is not forthcoming, or if you start proceedings without furnishing this information, it will be reported to the Court that you are denying me the opportunity

to settle this matter amicably.

Yours Faithfully,

Defence

Northampton (CCBC) County Court

Claim no.

Claimant: CL Finance Limited Defendant:

1 I, make this statement as my defence to the Claimant’s vague particulars of claim dated 27 October 2008. The Defendant respectfully seeks the courts permission upon clarification of the claimant’s case and disclosure of the necessary documents to amend this defence if required.

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

5 Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

6 The Defendant’s application for credit was successful and a line of credit was provided. However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the Claimant for the Defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

7 I refer in this section to the alleged agreement exhibit A.

8 In respect of that which is denied, if the court should decide that the said agreement is not void by virtue of s59 (1):

9 it is respectfully submitted that the agreement is improperly executed because it is not in the prescribed format set out under The Consumer Credit (Agreements) Regulations 1983. The agreement was entered into before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

10 Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the document does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61 (1)(a) and s127 (3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

11 Furthermore, the Defendant disputes the balance of the account, as during the period in which the account was operating The Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between the Claimant and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

a) No such contractual provision exists to allow Claimant to levy such charges;

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach and are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

d) The Defendant has not been furnished with the requisite default notice in order for the Claimant to terminate the alleged agreement.

e) And in any event, the Defendant avers that any Default or Termination Notice sent would have included penalty charges, invalidating that Notice as per Woodchester v lease.

f) The Claimant contends that they have a claim to monies under an agreement between the defendant and the original creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925

12 Accordingly, the Defendant puts the Claimant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

13 Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 10(e) of this

Statement.

14 The claimant respectfully requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

15 For the reasons set out in this Defence, the Defendant’s position is that the Claimant’s Claim has no real prospect of success and discloses no reasonable grounds for it to be brought. The Defendant reserves the right to seek costs against the Claimant on the basis that such conduct is unreasonable and/or vexatious in bringing and/or pursuing this claim should the matter proceed to a full assessment.

Statement of Truth

Subbing, I've got a feeling I will be following you with regards to CL Finance shortly:)

Good Luck

Hi Paul and welcome to you and Mrs Paul.

Please be gentle with BC - they're being quite nice to their customers and refunding without too much hassle just now.

CL Finance never seem to learn.

AQ received today.

Hello Paul!

The bank is not important, but if any points from my Thread below are of use, please grab anything you want:

BRW v A Particularly Nasty Bank

I'm a little further ahead, in that the AQ Stage has been and gone.

But many of the issues you face are more or less the same, so I think it would be a useful Thread to take a look at. I've had some good help from the key CAG players, as I think you will see.

So, if you read through my Thread, it may help to highlight some pointers you can use when drafting the AQ and/or when amending the Defence.

Good luck with it, will jump in to help if I spot anything where I can.

Cheers,

BRW

Thanks for that.

Regards

The Claim's been allocated to the small Claims track. The Court has ordered Cl Finance to provide all documents: "requested by the defendant at paragraph 1(a) of her annexe to the allocation quesionnaire:

Paul

Hi PW,

Whats were the requested documents specifically please.

Hi PW,

 

Whats were the requested documents specifically please.

 

A copy of the application form was submitted with the defence plainly showing that it did not conform with section 61(1)(a) CCA 1974. Having read the defence and my proposed directions the judge has ordered Barclaycard to provide the executed agreement.

Paul

Hearing on the 12th May set for 2 hours.

Will post a Witness statement shortly and cases I'm to rely up on.

Paul

Witness Statement.

1 The Claimant has failed to comply with the Defendant’s request to provide copy statements detailing all charges, Copy of Default notice and Notice of Assignment dated 11th August 2008.

2 The Defendant contends that before the Claimant/Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 needs to be fulfilled and that the assignment is not effective until the Debtor has received a Notice, therefore the Defendant contends that proceedings cannot be brought prior to the service of a Notice of Assignment and therefore invites the court to dismiss the Claim on the grounds that proof of Assignment has not been pleaded in accordance with s196 Law of Property Act 1925. Attached as Exhibit A

3 If the Court finds that the Claimant need not serve a Notice of Assignment prior to these proceedings the Defendant contends that the document the Claimant seeks to enforce is unenforceable by virtue of section 127(3) Consumer Credit Act 1974 for reasons set out below.

4 The application/agreement the Claimant seeks to rely upon is a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974.

S61 (1)(a) Consumer Credit Act 1974 provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60 (1)

The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61 (1)(a) and s127 (3). Attached as Exhibit B.

5 The Defendant contends that no prescribed terms are included within the signature document that the Claimant purports to be an executed agreement.

6 Accordingly S127 (3) provides that the court shall not make an enforcement order unless the debtor signed a document containing all the prescribed terms of the agreement.

The prescribed terms required for rolling account credit specified in Sch 6 are as follows:

Credit limit

Repayments

Rate of interest

7 The Defendant seeks to rely up on the relevant authority which relate to regulated agreements falling under section 8 Consumer Credit Act 1974 and refers the court to Exhibit C.

In Summary

8 It is clear that the agreement/Application does not contain the prescribed terms set out in schedule 6 column 2 of the aforementioned regulations therefore, the Defendant contends that the court is precluded from making an enforcement order and respectfully requests that the court determine the rights of the parties’ pursuant to section 142 CCA 1974.

Statement Of Truth

I believe the content of this Witness Statement to be truthful

Schedule of costs in respect of the hearing dated 12th May 2009 for summary assessment.

At all times the Defendant was a Litigant in Person within the meaning of Litigants in Person

(Costs and Expenses) Act 1975 and time spent by the Defendant is charged herein at an hourly

rate of £9.25.

The Defendant has spent time in Locating and examining the documents and other papers, which related to the proceedings.

.

The Defendant was obliged to spend time in considering and understanding numerous strands

of law including the law of consumer credit and procedure in the County Court which she achieved through internet and library research

Work Done

Receiving and considering the Claim Form and Particulars of

Claim (3 hrs) £27.75

Research regarding consumer credit law and the regulations thereunder (15 hrs) £138.75

Preparing Defence, Witness Statement(4 hrs) £37.00

Research regarding relevant CPR (10 hrs) £92.50

Research regarding Litigants in Person (Costs and Expenses) Act 1975 (10 hrs) £92.50

Summary

Costs payable by the Claimant £388.5

Disbursements (travel and parking) £15,00

Total costs payable by the Claimant £403,50

No VAT is claimed.

The amount calculated is for this Schedule of Costs only and is without prejudice to the Defendant’s right to claim further costs and disbursements properly incurred should this matter proceed to a full detailed assessment.

Dated:

Signed:

Two hours to go...will post later.

Paul

Just returned from Court.......WON!

Just returned from Court.......WON!

:D:D:D:D:D:D:D

Well done Paul! Looking forward to reading details.

S.

Nice one Paul,

For RBS information ....latest score....... Walton 1 Robbers and Twisters Nil.

sparkie

Well done Paul.

Are you going to report the detail, or at least confirm if you had the alleged debt declared unenforceable and won costs as claimed.

Title changed in the meantime.

The Judge dismissed the claim because the only signed document they had was an application form which didn't comply with the Act. The Court ordered the Claimant to supply a compliant agreement after I stapled the unenforceable application form to my AQ disputing it.

We didn't have to ask for a costs award the Judge asked what our costs were. However, he would only go for travel loss of earnings, parking.

Paul

The Judge dismissed the claim because the only signed document they had was an application form which didn't comply with the Act. The Court ordered the Claimant to supply a compliant agreement after I stapled the unenforceable application form to my AQ disputing it.

 

We didn't have to ask for a costs award the Judge asked what our costs were. However, he would only go for travel loss of earnings, parking.

 

Paul

Congratulations PW

A brilliant result. Congratulations.

T.

Well done Paul, just started off with Barclaycard been asking for agreement via CCA request, the refuse to provide it. I have stopped payment and put account in dispute and it is now with Mercer! they have put the account on hold 3 time now, however last conversation we had with them today (13th May) they say the financial obmudsmen have given them guidance that to satisfy the request they only have to provide terms and conditions which I don't believe satisfies my request. they have now said they will send someone round to our house although i have sent Mercers a CCA request and included the DCA refusal of appointment paragraph as recommended by the CAG. What do you suggest my next step his. Sorry to hijack your thread but really not where to go now! many thanks

Well done Paul, just started off with Barclaycard been asking for agreement via CCA request, the refuse to provide it. I have stopped payment and put account in dispute and it is now with Mercer! they have put the account on hold 3 time now, however last conversation we had with them today (13th May) they say the financial obmudsmen have given them guidance that to satisfy the request they only have to provide terms and conditions which I don't believe satisfies my request. they have now said they will send someone round to our house although i have sent Mercers a CCA request and included the DCA refusal of appointment paragraph as recommended by the CAG. What do you suggest my next step his. Sorry to hijack your thread but really not where to go now! many thanks

Don't worry. failure to comply with s78 means they're precluded from enforcement.

Well done Paul, just started off with Barclaycard been asking for agreement via CCA request, the refuse to provide it. I have stopped payment and put account in dispute and it is now with Mercer! they have put the account on hold 3 time now, however last conversation we had with them today (13th May) they say the financial obmudsmen have given them guidance that to satisfy the request they only have to provide terms and conditions which I don't believe satisfies my request. they have now said they will send someone round to our house although i have sent Mercers a CCA request and included the DCA refusal of appointment paragraph as recommended by the CAG. What do you suggest my next step his. Sorry to hijack your thread but really not where to go now! many thanks

Hmm Fos may have told them that but FOS dont govern the CCA1974 act, its trading standards and I believe there is a letter floating around the site from Trading standards stating what they would expect to see in a response to a s78 request.

s.

Hi Bradley,

Start yourself a new thread here in the BC forum, so you can get assistance without hijacking.