Having read this forum and had a pretty good solicitor in a recent case,

I have cobbled together what I perceive quite a nice defence, if anyone is interested.

Obviously people would need to tailor to their own needs.

Just really mentioning this to give something back to an excelllent forum and Dx100 help.

shall I post it up?

It does not include which I have read here recently.:

1) Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbeyicon National PLC and others (2009)

2) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

The only issue I have is that I have used a few times and I dont want a judge to think I just copied a template off the internet.

I would be happier to give it to MODS for them to give it to trusted / known posters?

Am happy to PM someone if they wanted to "disguise" it.

Please do lets take a look.

Andy

This is WIP and I have a few bits of case law and postage rules/law I wan to throw in.

embarrassed and somewhat fmotl.

far to long and detailed for the very sparse POC's we get today

Mmmmmm you must remember an initial Defence should only respond to the points raised in the particulars of claim...as in most cases claims from DCAs do not actually know what the debt is or any history pertaining to a debt...so the more you tell them initially the more they will use and proceed to stage 2 of a claim (Allocation).

Initial defence ...short and vague as their particulars

If they proceed...particularise in the witness statement...then its too late for them to use any information in support of the claim.

Andy

agree.

a bit too verbose for a defence statement.

things can be expanded on in Witness Statement.

I agree also.

In the past I have said minimum defence and expanded in a witness statement.

This was done by a solicitor whose firm have a pretty good reputation for winning.

At least they did in the past when I followed their blog.

That defence cost me £1,500.

It isnt in its entirety as I have taken out bits of waffle etc.

Andy, probably better to take it down as I wouldnt want it used as a template especially if it gives claimants a "heads up".

I thought I would submit more for mods to see if there was any merit in it.

what is fmotl?

I've hidden the post we can still read it

I agree also. In the past I have said minimum defence and expanded in a witness statement. This was done by a solicitor whose firm have a pretty good reputation for winning. ?

ah ok, a sol did it.

imo, depending on the circs (eg if a matter is for sure barred then there's not much else to state), its about getting the right balance between making a valid & cpr compliant defence statement re the particulars claim (also to perhaps try avoid a strike/summary judgment app'n (though sometimes they do that anyway)) and not saying too much which can be said in witness?

Not sure I fully understand this post.

The claim is 3 months from being statute barred.

I've not heard of a claim being judged in default for any other reason than getting the defence in on time.

Are you still agreeing that a short defence and a long witness statement is better?

I typed up from the solicitors wording but I left out a large section the solicitor put in that the assignee of the debt was not registered under the FCA or fos(whatever) and therefore could not collect on the debt and that it was a criminal offence to pursue the debt.

But this has not phased 1st credit finance Ltd who are continuing with barristers.

oh dear he's one of those is he...

1st credit are covered by their group licence and its not a criminal offence anyway...

SB clock stopped when the claimform was issued.

and yes its far better to do a very vague defence reflecting their vague POC

then if they cough on CCA/CPR or produce exhibit in their witness statement

its then that you bring in the rest of that war and peace defence

Not sure I fully understand this post.

 

The claim is 3 months from being statute barred. Can never become statue barred once a claim is issued...clock stops...unless it was SB before they issued the claim

I've not heard of a claim being judged in default for any other reason than getting the defence in on time. Default judgments are issued if claim not acknowledged/defence submitted within the time allowed to do so

 

Are you still agreeing that a short defence and a long witness statement is better? Proven fact see the Financial Legal Success forum

 

I typed up from the solicitors wording but I left out a large section the solicitor put in that the assignee of the debt was not registered under the FCA or fos(whatever) and therefore could not collect on the debt and that it was a criminal offence to pursue the debt. Not sure about the criminal offence part ?

 

But this has not phased 1st credit finance Ltd who are continuing with barristers.

Andy

Andy

Ok, I will post up the text of the wording from the solicitor re 1st credit not being registered for info purposes.

I ocr'd it, as below:

Unauthorised activities contrary to the FSMA

34. The Defendant has via his solicitors, checked the Financial Conduct Authority (FCA) Consumer Credit Register.

The FCA register holds details of all authorised companies who hold FCA authority to undertake regulated activities.

35. The Claimant Company appears on the register, however the companies' permissions to carry out regulated activities has lapsed and is no longer effective.

The Claimant is therefore not authorised by the FCA for regulated activities.

A copy of the FCA register is annexed to this Defence.

36. An activity is a regulated activity under Financial Services and Markets Act 2000 (FSMA) if it is "an activity of a specified kind which is carried on by way of business" and "it relates to an investment of a specified kind" (see section 22(1)FSMA).

37. "Specified" means specified by an order made by the Treasury (see section 22(5». Activities and investments are specified for the purposes of FSMA by the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("RAO") (see article 4(1».

38. Rights under a credit agreement are an investment of a specified kind for the purposes of section 22 of FSMA (see articles 73 and 880 of the RAO).

39. Article 60B(3) of the RAO defines credit agreement and regulated credit agreement: "credit agreement" means an agreement between an individual or relevant recipient of credit ("A") and any other person ("B") under which B provides A with credit of any

amount; "exempt agreement" means a credit agreement which is an exempt agreement under articles 60C to 60H; "regulated credit agreement" means any credit agreement which is not an exempt agreement 40.

Section 19 of FSMA prohibits a person from carrying on a regulated activity in the United Kingdom unless he is an authorised person or an exempt person ("the general prohibition").

Carrying on a regulated activity without authorisation or exemption under FSMA is an offence (see sections 19 and 23 of FSMA).

41. Section 19 FSMA states: - 19 The general prohibition.

(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is-

(a) an authorised person; or

(B) an exempt person.

(2) The prohibition is referred to in this Act as the general prohibition.

42. Section 23 FSMA states: -

23 Contravention of the general prohibition

(1) A person who contravenes the general prohibition is guilty of an offence

and liable-

(a)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both

43. The regulated activity of Debt collecting is specified by article 39F of the RAO, which provides in relation to debts under credit agreements:

Debt-collecting

39F.-(1) Taking steps to procure the payment of a debt due under a credit agreement or a relevant article 36H agreement is a specified kind of activity.

(2) Taking steps to procure the payment of a debt due under a consumer hire agreement is a specified kind of activity.

(3) Paragraph (1) does not apply in so far as the activity is an activity of the kind specified by article 36H (operating an electronic system in relation to lending).

(4) In this article, "relevant article 36H agreement" means an article 36H agreement (within the meaning of article 36H) which has been entered into with the facilitation of an authorised person with permission to carry on a regulated activity of the kind specified by that article. {Emphasis added}

44. It is clear that the Claimant has been and is continuing to seek to procure payment from the Defendant under a regulated consumer credit agreement.

45. The Claimant cannot rely on an appointed representative to carry out regulated work which requires authorisation under the FSMA as the Claimant as principal must be authorised.

The Claimant clearly is not authorised under the FSMA and therefore cannot undertake regulated activities in its own name.

46. Accordingly the Court should not allow these proceedings to continue as to do so would allow the commission of an offence via the Court.

The Defendant invites the Court to note the Claimant named on the Claim form is the same company that does not hold the required permissions under the FSMA.

This is beyond doubt from the documents annexed to this Defence.

Quite...but not as part of an initial defence...save it for the witness statement

Quite...but not as part of an initial defence...save it for the witness statement

Agreed. Not sure why a solicitor went to great lengths.

Inexperienced in dealing with court claims and procedure ?

Inexperienced in dealing with court claims and procedure ?

Possibly. At least not as streetwise as you lot.

I hope it's useful my posting stuff up. I am grateful for the advice you all give which I have been reading.

Not sure I fully understand this post.

 

The claim is 3 months from being statute barred.

 

I've not heard of a claim being judged in default for any other reason than getting the defence in on time.

 

Are you still agreeing that a short defence and a long witness statement is better?

 

.

was this post to me?

am not saying yours is barred, just using that as an eg of a very short valid defence statement where nothing else needs to be stated.

i was talking about applications, not default judgments.

yes, as the guys say, short as possible whilst being cpr compliant

Credit Card Case

- To be brief

- Termination notice dated on the 15th day after default notice date.

I read the Brandon v Amex Case at Appeal that 14 clear days are needed for the debtors opportunity to pay, but has to give the debtor 2 days extra for service of the default notice. I think the De Minimus argument by AMEX was also wiped out (ie no detriment to debtor)

In my case this has not happened and they terminated on 15th day, same date as the notice.

So the default notice is defective, and renders the claim unenforceable?

The agreement in the claim is stated as Nov 2006. However the claim is very sparse and lacking any detail.

HOWEVER, the claim says the account defaulted and later says "In breach of contract" with no detail as to what clause was breached etc. (very sparse pleadings)

QUESTION : If the default notice is defective (ie as to service re 14 days) can the claimant claim Other breach of contract as termination was based on the default notice. Ie under S98? (s98a shouldnt apply as it came in much later) ?

I think they cannot as ther terminated the agreement without ANY valid notice.

The claimant of an assigned credit card debt (agreement 2006) has provided two "true" copies of agreements with terms & conditions, being the first one and one at the time the account defaulted.

Why would the APR be different between the first terms & conditions and those at the point of default?

Also, have noticed the interest rates incl APR on the original credit card statements is different from both agreements. I noticed that they have removed the interest rates from their copy statements.

Most probably because its a cut and paste of different agreements and the best they can do for disclosure.

If you want assistance with the claim we will need all the details of the debt and court claim to advise.Clutching at APRs does not sound very promising in defending a claim.

Please read the following link and then copy and paste the Q,s and responses back here.

https://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2018**

Andy

Threads merged..I assume this is one and the same.Please do not start multiple threads on the same issue.

Claimant -

date of claim - claim was made Feb 2017

Particulars of Claim

What is the claim for –

1. The claimant is the assignee of a XXXXBANKXXX debt in the sum of £6750 assigned on 15/10/2014.

Statutory notices of assignment were sent to the defendant.

2.The debt is a credit card account first opened by the original creditor on or about 01/11/2006 under ref XXXXXXXXXXXXXX.

The defendant used the credit facilities.

3.On 01/10/2012 the account defaulted with an outstanding balance of £6750.

The claimant and its predecessors in title demanded repayment of the sum.

In breach of contract the defendant failed to repay the sums due.

4.The claimant claims interest under section 69 of the Couty Courts Act 1984 at the rate of 8% a year from 25/10/2014 to 25/01/2017 on £6750 and also at the same rate up to the date of juddement or earlier payment at a daily rate of £1.35

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? NO, but claim was made Feb 2017.

What is the total value of the claim? £8500

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? - CREDIT CARD

When did you enter into the original agreement before or after April 2007 ? BEFORE

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? I THINK SO

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. ASSIGNED, DEBT PURCHASER

Were you aware the account had been assigned – did you receive a Notice of Assignment? – NOT AWARE OF ASSIGNMENT BUT HAVE HAD DEMANDS FROM ASSIGNEE SINCE

Did you receive a Default Notice from the original creditor? YES SEE 1ST POST ABOVE, BUT A DIFFERENT DATE FROM THE CLAIM FORM BY MANY MONTHS.

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? NO I HAVE NOT

Why did you cease payments? FINANCIAL DIFFICULTIES, HAD A LOT OF DEBT BUILD UP SO PRIORITISED. WENT THROUGH A PHASE OF NOT OPENING LETTERS ETC.

What was the date of your last payment? MARCH 2012

Was there a dispute with the original creditor that remains unresolved? THERE WAS A COMPLAINT BACK THEN BUT CANNOT REMEMBER DETAILS.

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan ? NEVER ENTERED INTO A PLAN JUST IGNORED

who is the claimant

who is the original creditor

what date is top right on the claimform

how are you claiming last payment date?

Is it necessary to state the above?

Will this not compromise me if I give that information as it will then be easily deducible who I am and which claim to the claimant who may reading this site?

I have stated the month on the claim form, why do you need the exact date?

Last payment made was physically made from my bank acc.

Would it not be better if I PM the OC and Claimant to you privately?

Also, I cannot seem to be able to edit or even delete a post after submsiison when I have come out and go back into the forum, I am logging in ok.