To be honest with you, this reads more like a witness statement than a defence.

Also, right at the start you admit that you owe the debt - so I don't see what your defence actually is. This is an admission of your liability.

I think I'll have another crack at it, see if I can make it shorter.Tis a tad long winded Yog for a set a side

 

When I submit this to the court, can I do it via MCOL or does it have to be direct to the court?

Andy

Nicklea, I'm not disputing the debt. That's not the issue. The issue is I had an arrangement to pay £10 a month, by standing order. CL Finance or their bank started rejecting my payments, to enable them to litigate against me on the basis of non-payment, My defence boils down to the fact that I did make payment as per arrangement, and it was them that began to reject the payment, after several months of accepting it ( so there was no problem with my standing order). I then made every effort to sort it out but they did not respond to my requests and secondly, didn't serve a default notice before taking action.

In other words, I did everything right, and nothing wrong, and couldn't have done more.

Andy, I have the set aside. It's been granted. That defence is now to defend the original claim. The set aside has basically wiped out the default judgment against me as if it never happened, and we're back to my having to defend against their claim.

Of course Yog apologies long day.

Regards

Andy

Right I've rewritten the defence, stripped it down to the bare facts. I'll post it on here when I get home tonight.

When I submit it to the court, do I need to include my evidence, or is it just the written defence? I haven't received any written instructions from the court.

OK, I've completely rewritten the defence; it's now less than half the length. How does this read? I have to submit it by 4pm on Thursday, with supporting evidence.

I, the Defendant, am acting as Litigant in Person.

In their Particulars of Claim, the Claimant has alleged that I have failed to make payment of £xx.00 per month, from December 20xx until October 20xx, and that I am therefore in breach of a formal payment arrangement between myself and the Claimant, which honoured and continued a previous payment arrangement between myself and x Bank plc.

Furthermore, the Claimant has stated that I have been served with a Default Notice in accordance with section 87(1) of the Consumer Credit Act 1974, which applies in this case.

Further to the Particulars of Claim, the Claimant has alleged that any payments made by me to them were cash payments, which is not the case.

In defence of this Claim, I believe, and can conclusively demonstrate, that I did make payments to the Claimant’s account, via a Standing Order from my own bank account, using the account details provided me by the Claimant, and that payments were made successfully to their account regularly each month.

The alleged breach of the agreement, which the Claimant states commenced after December 2009, is spurious. I can demonstrate that payments continued to be made to the Claimant’s account as before, but that, due to a change, error or omission on their part or that of their financial agent, my payments were rejected and returned to my account. This was not due to any lack of funds in my account, which can be demonstrated, but was due to some still unexplained circumstance entirely under the Claimant’s control.

I will show that I made repeated efforts to obtain a solution from the Claimant, vis a vis accurate or updated account details, but that they failed to respond to any of my written requests, despite my producing evidence showing that my Standing Order was as per the account details they provided, and that no payments had been missed, and that it was they who were not accepting my payments.

In respect of the alleged serving of a Default Notice, in accordance with s87(1) of the Consumer Credit Act 1974, I received no such Notice, whether compliant with s88 of the Act or not. When I requested a copy of the Notice under the rules of Disclosure, the Claimant did not respond to my request, despite acknowledging receipt of my letter.

It is my contention that I did comply with the terms of the arrangement between myself and the Claimant, and that any cessation of payments reaching their account was due to circumstances wholly within their control and wholly outside my control.

It is my further contention that I did everything I could to try and rectify the situation, but that the Claimant refused or failed to take the simple steps which would have done so.

The Claimant, in failing to issue a Default Notice, prior to commencing litigation, has acted in clear breach of the Consumer Credit Act 1974. In failing to provide me with a copy of the alleged Default Notice when formally requested to do so, they have failed to act in accordance with CPR 31.3(1).

I request that the Claim be struck out.

I submitted the defence pretty much as above, though better laid out of course. The enemy have until Jan 3rd to contest the defence.

Howard Cohen & Co. Solicitors for CL Finance, have replied to my defence with a letter stating that they wish to resolve the matter without going to court and enclosing a triplicate formal agreement that their client is prepared to accept £7K by monthly instalments of £10 a month, subject to a Consent order (the triplicate form), by which I withdraw my defence. This knocks a grand off the total btw.

Backpedaling or what?

So now what? Go to court? It's tempting, as the judge would probably go berserk with them, and I think they know that. But if I don't accept this offer, the judge might go berserk with me. As said previously, I don't dispute the debt, just CLs underhand attempts to obtain CCJ and add more money to the total by fabricating spurious "arrears".

One other thing: when Default Judgment was given against me, I presume a CCJ will have been registered with a credit reference agency? As that judgment was set aside, ie. it was wiped out, will any record with a CRA be removed? Anyone know?

Howard Cohen & Co. Solicitors for CL Finance, have replied to my defence with a letter stating that they wish to resolve the matter without going to court and enclosing a triplicate formal agreement that their client is prepared to accept £7K by monthly installments of £10 a month, subject to a Consent order (the triplicate form), by which I withdraw my defence. This knocks a grand off the total btw. Would that make the figure correct and acceptable Yog?

 

Backpedaling or what?

 

So now what? Go to court? It's tempting, as the judge would probably go berserk with them, and I think they know that. But if I don't accept this offer, the judge might go berserk with me. As said previously, I don't dispute the debt, just CLs underhand attempts to obtain CCJ and add more money to the total by fabricating spurious "arrears".

 

One other thing: when Default Judgment was given against me, I presume a CCJ will have been registered with a credit reference agency? As that judgment was set aside, ie. it was wiped out, will any record with a CRA be removed? Anyone know?

Well done Yog on bringing this reaction and justifiably standing up to them.

Regards

Andy

Hi Andy,

The actual figure (which I did not dispute) was over £7,900, so they are offering to knock a grand off and accept £10 a month fixed, as I read it. No 'subject to review' or such malarkey.

How do I check to see if the CCJ was registered? With the court?

You can check your normal CRAs or here www.trustonline.org.uk

Regards

Andy

Also " By Consent " can you give more details is it a Consent or a Tomlin Order.Be careful to check the small print before you agree anything.

It's referred to in their letter as a Consent Order. It's not a Tomlin Order. It's their document but starts off 'In the Sheffield County Court' etc etc.

Before an Officer of the Court

By consent

It is ordered that

1. The parties having agreed the terms of settlement in the schedule attached hereto, all further proceedings in this action be stayed save for the purposes of carrying into effect the terms in schedule hereto.

2. There be no order as to costs

3. Liberty to apply.

SCHEDULE

The Defendant do pay the Claimant the sum of £7,000.00 in settlement of this claim by monthly instalments of £10.00 commencing one month after date of this order.

The Defendant withdraws his defence.

That's it.

Wjhat does "Liberty to apply" mean?

Thats fine Yog

Liberty to apply simply means should you default on the monthly payment they have recourse to resume proceedings,as you do should they renege on the schedule.

Regards

Andy

So, how many years is 700 months?

To be honest, if I'm ever in a position to make them a lump sum offer of even a quarter of the total, I bet they'd bite my entire arm off.

Someone at their end has obviously realised that their case is almost non-existent, and that a book might come flying their way in court. Shame it ever came to this though. It's cost me money and 2 days off work, but I guess they are knocking a grand off...

58.3 years:lol:

The only thing they do have is that HSBC before them had solid documentation (or at least it looks it to me) so there's no dispute over the debt.

What they've lost now is the 'subject to review' which was in the previous payment arrangement, and which potentially gave them scope to increase my monthly payment by getting me to fill out I&E forms every year or two. Oh dear. Poor them.

58.3 years:lol:

I'll be...let's see...106 years old by then. Wow.