Hi avatari, thanks for that.

Followed it up by reading O'Hare and Browne, Civil Litigation. £14 well spent online !

I agree that under CPR 31.2 I have disclosed the existence of the document by referring to it in my amended defence. Which I obviously had to because it is an integral part of it.

And then the right of inspection follows along with the standard disclosure.

I hope 'they' need to see the document due to the fact that the DN 'adversely affects their case'. Well I think it adversely affects it.

As you say, along with MandM and gh, I won't add it to my WS for the SJ/SO Hearing. However, if they decide to introduce its existence etc I'll have all the necessary information and answers to hand.

If I don't disclose the DN to them, it will only prolong things. They would also probably get an order from the Judge for me to disclose aswell. So I'll operate in good faith and with respect to the rules and due process of the court system ;-)!

Just the opposite to 'them' !

Costa

PS. Will only send them a copy. Maybe an illegible one, lol!

What are the dates for the SJ/SO hearing ?

has a hearing date been put forward for the 'trial'?

Standard disclosure is 14 days before trial IIRC

They are asking for Specific disclosure without making the request under 31.14 or 31.12 and they haven't offered to cover your copying expenses under 31.15.

Again they choose to do things very sloppily.

You should disclose, as if you don't it *may* affect your costs at the SJ/SO hearing bizarre yes but they would say that you hadn't come to teh hearing with the 'cards on the table' and without 'clean hands' both taken into consideration when the costs issue arises.

Of course they don't play fair, but then we wouldn't expect them to would we.

IMHO there is no rush to disclose, as long as they get it before they walk into the court that would be ok. and if they say otherwise your SJ/SO app, does not mention the DN at all and therefore it has no relevance to that hearing, only to the case overall

Your SJ/SO app is primarily about non-compliance with S79 and the OFT sheet gives you clearer info about other breaches in the info they have not supplied.

NOW your application is also 'a bit' about the non-compliance with the previous order BUT IMHO that is a smaller part as really that is between the Court and the claimant.

YOUR ORIGINAL app is live again and it is that that matters.

I will dig out the original OFT document if I can - AFAIK it is a published document and the claimant will have a copy.

The date for Hearing is 11th May.

No date fo trial yet. Allocation, etc will be after/at the Hearing. Had Notice from Court informing me of this last week.

When I disclose the document I will the accompanying letter will refer to them, once again, not complying with the CPR, in particular making a formal request under 31.12, 31.14 etc.

They haven't complied so far, so why would they start complying now!

Amended WS (for SJ/SO hearing) will have to be filed and served by 4th May. So will probably send 'copy' of DN, as requested, around the same time.

Cheers gh.

Costa

Costa, sounds good to me. This way the judge will see how you operate correctly, even as a LiP, when the Claimant, despite representation, can't even be bothered to play ball, act fairly, and respect the law.

IMO, their failure to adhere to the CPR here - as gh points out in last post - only strengthens your hand at the SO hearing, given that SO is based on their failure to comply with 'the rules' (in a slightly different context obviously).

Best of Luck costa... U r doing excellent job..

Thanks for the support Jason

Hi All,

I've not disappeared ;-). Still here. The following is my amended WS for SJ/SO hearing on 11th May. Will file and serve by special delivery on Saturday, to be there for 4th May, taking into account the Bank Hols!

In the LOCAL County Court

Claim number XXXXXXXX

Between:

I, COSTA, of SOMEWHERE will state as follows

1. I am a Litigant in Person and the applicant/defendant in these proceedings. I make this witness statement in support of my application for summary judgement to be entered against the claimant as it has no realistic chance of succeeding or, in the alternative for the claimant's claim to be struck out as the statement of case discloses no reasonable grounds for bringing the claim, it is an abuse of the court’s process and the claimant has repeatedly failed to comply with the rules, practice directions and court orders.

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

3. There is now produced and shown to me a bundle of documents marked “COSTA1”. The exhibits “COSTA1” to “COSTA13” contain copies of the documents to which I will refer in this witness statement. Their related document number can be found at the top right hand of each page.

4. On XXth November 2009 I sent Incasso LLP, acting on behalf of the claimant, a formal request pursuant to s.77 of the Consumer Credit Act 1974 for a copy of information under the agreement. A copy of this letter is attached labelled “COSTA1”.

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,—

And follows that:

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;

The prescribed period is defined in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 as being 12 working days.

5.The 12 working days expired on XXth December 2009 and as of Xth February 2010 I had still not received the information requested and the claimant remained in default of the s.77 request and is therefore unable to enforce the alleged agreement.

Enforcement is not explicitly defined in the Act, however recent caselaw, McGuffick and The Royal of Scotland [2009] EWHC 2386 (Comm) and Carey and HSBC Bank Plc [2009] EWHC 3417 (QB),has concluded that the definition of enforcement in these cases is limited to actually obtaining a judgement against the debtor. (As opposed to what may be considered to be enforcement - i.e. DN, TN, instructing DCA, issuing a claim etc, etc.)

McGuffick and The Royal of Scotland [2009] EWHC 2386 (Comm)

80……..Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement.

HHJ Waksman QC in Carey v HSBC Bank Plc [2009] EWHC 3417 (QB)

130. Mr Gun Cuninghame’s point is a short and simple one. It will be recalled that s78 (6), the sanction for non-provision of a s78 copy, is that while this default continues, the creditor is not entitled to enforce the agreement. The recent decision of Flaux J in McGuffick v RBS [2009] EWHC 2386 (Comm) considered the effect of a parallel provision in s77 (4) (a) of the Act. For these purposes, it was not suggested that there was any material difference between that and s78 (6).

6. On XXth December 2009, I received a claim form (N1), issued by Incasso LLP acting on behalf of Tesco Personal Finance. The claim form was issued on XXth December 2009, following my CCA request dated XXth November 2009. Copy of N1 attached “COSTA7”. The issuing of the claim form is a commencement of proceedings, and therefore the claimant wishes to obtain a judgement to enforce the agreement. This is contrary to s.77(4) of the Consumer Credit Act 1974.

7. Also the claimant failed in their CPR 16 duties where it expressly states, under CPR 16PD 7.3 ‘where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim’ and in addition to this failing there is no statement on the claim form indicating that a copy of the agreement is to follow – which is contrary to CPR 16.2(2).

8. On XXth December 2009,following receipt of the claim form and not having sufficient information with regard to the agreement, any default notice served and sum claimed,I sent requests for further information under both CPR 18 and 31.14 to Incasso LLP for a copy of the agreement, due to the fact that no documents were attached to the claim form. Copies of these letters are attached labelled “COSTA2” and “COSTA3”.

9. On XXst January 2010 I received a reply, a copy of which is attached labelled “COSTA4”, there have been no further details supplied nor has any agreement been subsequently supplied. This letter was received after the 14 days allowed under CPR 18 and the 7 days under CPR 31 duties. The claimant had failed in their compliance with CPR 18 and CPR31.

10. On XXth January 2010, I sent a further request under CPR 31.14 to Incasso LLP for a copy of the agreement. I requested that if they were unable to comply within the 7 days allowed, that they agree an extension to the deadline for my defence. Copy attached labelled “COSTA5”. There was still a failure to comply under their CPR 18 and 31 duties.

11. On XXth January 2010 I received a further reply a copy of which is attached as “COSTA6”. There was still a failure to comply under their CPR 31 and 18 duties even after Ihad allowed them an extra 7 days to comply.

12. On Xth February 2010 I received a letter from Cobbetts LLP informing me that they were now instructed to act on behalf of the claimant and that they had noted my request for information under CPR18 and that they should be in a position to provide the documentation within 14 days. Copy of letter attached as “COSTA8”. Once again, even after changing solicitors, the claimant had still failed to comply with their CPR duties and attached no urgency to fulfilling my request for information.

13. On XXth February 2010 I received a letter from Cobbetts LLP, attached to which was a copy of the alleged agreement between myself and Tesco Personal Finance and a screen print indicating when the default notice and formal demand were issued. Copy of letter from Cobbetts attached as “COSTA9”. Copy of Agreement and screen print attached as “COSTA10” and “COSTA11”.

14. If this was in response to my CPR18 request it took the claimant 49 days to honour my request for information and then they only supplied a ‘poor copy’ of the agreement and a screen print of the default notice issue date. They had not, as of XXrd February 2010, supplied a true copy of anydefault notice or enforcement notice that they or the original creditor sent me, with a copy of any proof of postage that they hold. Copies of statements for the entire duration of the credit agreement in order to be able to confirm the sum being claimed is accurate along with other items I requested under CPR 18 on XXth December 2009. The information had not been supplied within fourteen days and therefore I must advise the court that the claimant is trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

15. On Xth March 2010 I attended an application hearing in the Local County Court before District Judge X. The claimant was ordered, by District Judge X, ‘to file and serve fully pleaded particulars of claim together (so far as service is concerned) with legible copies of any document referred to therein or an explanation of why such copies are unavailable’.

16. On XXth March 2010, as ordered, the claimant filed and served a fully pleaded Particulars of Claim “COSTA12”. However, the copies of the fixed credit agreement referred to therein at pages 1 and 2 were ‘illegible’. No default notice was attached, as ordered by District Judge X and there was no explanation as to why ‘easily legible’ copies of the fixed credit agreement, and the Terms and Conditions of the agreement, were not available or attached to the particulars of claim. This was a requirement to fulfil the Defendant’s s.77 request and the order of District Judge X.

17. The Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

18. On XXth March 2010 I sent a letter to Local County Court, copy attached as “COSTA13”, requesting that my application to strike out be restored.

19. As the claimant has failed to comply with the defendant's s.77 request of XXth November 2009, and remains in default of that request and therefore is unable to obtain judgement I respectfully request that the court enters summary judgement against the claimant pursuant to CPR 24.2 as the claimant has no real prospect of succeeding.

20. The claimant has shown a complete disregard for District Judge Xs’ Order of Xth March 2010 and the PRACTICE DIRECTION – PRE-ACTION CONDUCT, specifically paragraphs 4.2 and 4.4(1)(2)(3) and the Civil Procedure Rules, in particular CPR 16PD 7.3, CPR 16.2(2), and has also not satisfactorily responded to several lawful CPR18 and CPR31 requests for further information vital to the case, the claim is without merit and fanciful and I respectfully request that the court uses its powers to strike out the claim under CPR 3.4(2)©.

21. Also, I respectfully ask the court, to consider an application for costs by the defendant in respect to the claimants unreasonable conduct pursuant to CPR 44.14.

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Signed:

Dated:

All help and advice much appreciated.

Costa

you need to make *really* clear why they are in default of your s77 request

There is an OFT guidance as to what they should provide in response. Quote that and detail what is missing (apart from the legible copy issue) BTW you need to state that as the copy is not easily legible then they have not complied (you don't actually state that)

You also need to state why they haven't complied with your CPR 18 & 31 requests as it is not obvious (and I sort of know the case....)

Cheers gh, got the following:

Guidance on sections

77/78/79 of the Consumer Credit Act 1974– the duty to give information to debtors and the

consequences of non-compliance on the

enforceability of the agreement

An OFT consultation

January 2010

2 THE DUTY TO GIVE THE DEBTOR OR HIRER A COPY OF THE AGREEMENT AND OTHER DOCUMENTS

The prescribed period

2.14 The period within which the duty must be complied with is 12 working

days after the request is received. This is set by the Consumer Credit

(Prescribed Period for Giving Information) Regulations 1983 [sI

1983/1569]. Since the period of 12 working days runs from 'after' the

receipt of the request, when calculating the period the day the request is

received is not included. However, the information must be given

'within' the period, so that the calculation of the period will include the

day the information is sent.

2.15 By section 189(1) of the Act, 'working day' means any day other than a

Saturday or a Sunday, Christmas Day or Good Friday or a bank holiday.

A copy of the executed agreement

2.16 The meaning of 'copy' is dealt with in section 180 of the Act and in the

regulations made under that section, the Consumer Credit (Cancellation

Notices and Copies of Documents) Regulations 1983 ('the Copies of

Documents Regulations').

2.17 The copy of the executed agreement must be a 'true copy' of the

original. However, as confirmed in the recent case of Carey v HSBC

Bank plc,the term 'true copy' does not mean a carbon, photocopy,

microfiche copy or other exact copy of the signed credit agreement.

Legibility of any copy

2.29 Any copy must be easily legible, as must any copy of notices of

variation or statement of the terms of the agreement as varied. If the

creditor or owner has a poor quality photocopy or microfiche, it should

retype it or repopulate a template of the relevant agreement form with

the details of the specific agreement, so that the copy sent can be easily

read.

2.30 In these circumstances, it would be advisable to send a copy of the

photocopy or microfiche as well: although not strictly required, it may

assist in avoiding disputes.

Hope that's a start.

Hi Costa, welcome to Cag.

 

You're quite correct. start by acknowledgement of service. As its Northampton I assume you're ok to do this is online. Can you post up the Particulars of Claim (less any personals)

 

M

Hi, I'm sorry to bother you but I'm not sure what to do as regards posting but I too have had a letter from Incasso who have said they will commence legal proceedings on the 5th of May. I have a DMP with CCCS and have had letters from Triton, Moorcroft and now instead of sending them addressed to me, Incasso are sending them to my husband and having spoken to them they say that Tesco are within their rights to refuse the payments they have been getting through the CCCS and take legal action to recover the sum owed.

You mention CCA can you please explain the process of writing to them, since losing a job and losing the plot a bit, I have trouble trying to deal with people which is why we went onto a DMP in the first place.

I am extremely frightened that this firm from your posts will try and make us bankrupt or take our house. At the moment I am in bits.

Regards

We are on a DMP and the CCCS are making payments to Tesco with whom we had a loan which because of circumstances including losing two jobs because I reported people misappropriating funds and goods from the companies I worked for in both companies. Despite working with the CCCS Tesco have now handed on this debt to Incasso without informing us and from the posts I am now very frightened.

Originally Triton etc., wrote to both of us, now Incasso have just targetted my husband and although the CCCS have told us not to worry they will deal with them, Incasso are instigating legal proceedings against him on the 5th May. I have read the threads but I cannot understand or get my head around them. Since losing my jobs I have had a virtual mental breakdown where I cannot grasp what is being said to me or actually understand what is written down. I used to be so sharp before but now I cannot cope. I dont have any copies of my agreements with Tesco it was back in 2004 ish that the loan was taken out in joint names for £30,00 we now owe just under £10,000 and it was only last year that the banks doubled our interest rates on our cards and costs just spiralled out of control and although I wrote to Tesco to ask for a reduction in payments, they never replied and I did try to keep up the £298.00 payments and also tried to negotiate with Triton for a lesser payment but they wanted me to pay £300 because the computer wouldnt let them take less.

I dont know what I would do if they made us bankrupt or tried to make us sell the house because we could never get another mortgage with the state our finances are in. Though I have managed to keep the mortgage up to date despite HSBC recalling our mortgage monies.

Sorry if this has rambled on but I've no-one else to turn to.

Hi whitland,

Thanks for your posts. I will try and help as much as I can. I'm at work at the mo, so I will come back later and hopefully flesh out what I say here.

Tesco did the same with me. I was paying through a DMP and they refused the payment plan. I still pay now, what I can afford. Being in a DMP and offering to pay something towards the loan will always work in your favour where the courts are concerned. You are not trying to avoid your debts!

One other thing you mention which interests me and will interest other people on cag is the fact that your agreement pre-dates 2007. If you can post a copy of the agreement it can be examined and people can advise on enforcibility.

You can send a CCA request to Incasso, under s.77 of the Consumer Credit Act 1974, and they must supply you with the infomation you request. However, I am in my present situation with Tesco, due to Incasso/Cobbetts not providing legible informaton I requested.

You are doing the right thing by paying your priority debts, your mortgage etc. You are a long way from losing your house or being made bankrupt. It may never happen. Only a court can decide such things. Companies, such as Triton, Moorcroft etc always mention 'court action' 'legal proceedings' as threats to panic you into paying money that you haven't got.

Read, read, read, on CAG about these 'shysters'. You will soon appreciate and understand how they operate.

Incasso are just another example.

Going to court is not always the end of the road. Our civil legal system allows you, as the defendant, to defend yourself and it works on the balance of probabilities where the onus is on the claimant to prove their case. If you have a stronger argument the scales will tip in your favour.

CAG, and the people who contribute invaluable information and support, have helped me in my fight with Tesco/Incasso/Cobbetts. I feel confident enough to stand before a Judge and give my argument. The war isn't over, however, I'm winning the battles. This has all come from joining CAG.

Hope it helps .

Will be back later.

Costa

There is an OFT guidance as to what they should provide in response.

hope this helps

OFT guidance to Waksman.pdf

Cheers gh. Much appreciated. Will post again later. Up to my eyes in preparing a powerpoint presentation for work on Friday.

Costa

Hi gh,

Just been comparing and cross referring the OFT Waksman Draft and Guidance on Sections 77/78/79 of the Consumer Credit Act 1974– the duty to give information to debtors and the consequences of non-compliance on the enforceability of the agreement - An OFT consultation - January 2010. They are the same document!

Correct me if I'm wrong !

Costa

Bump!

Bump!

post #515?

if they're worded the same then they prob are the same

It's all from the OFT

Hi All,

** URGENT ADVICE NEEDED**

Just received an 'easily legible' copy of the loan agreement from Cobbetts and they are asking me to vacate the hearing on 11th May . Even though they are saying my application is to 'set aside'! They have also filed the copy with the court.

They have now complied with the DJ's order of 4th March. I know they have not complied with the prescibed time limits and it has taken several attempts to get the requested information. My application is to obtain SJ/SO due to the fact that they have continually failed to comply with the CPR etc.

What is the best thing to do?

Do I vacate or continue with application :-|? I feel that now they have supplied the legible copy the DJ will not 'strike out' and it will continue to be allocated to track. Then I've got the DN issues I can then introduce. However, the application is to do with their non-compliance.

Need to make a decision by Tuesday, because that's when I will file and serve my WS for hearing.

All help appreciated.

Costa

hmmmm not good

ok, are there any other documents mentioned in the agreement? did they send copies? if not they are still in breach

Have they ever (since the S7 request) sent a 'signed statement of the account' (there is guidance from the OFT as to what should be in that statement) if not they are still in breach.

They are still in breach of the order as they did not deliver it on time nor provide a written explanation as to why (slightly dodgy one)

Is the agreement original or a 'reconstruction'

can you post up your original SO/SJ app (or link to the post #)

Cheers gh,

As you say it's not good. It is a copy of the original agreement and not a reconstruction. The only other document they mention in the agreement is the PPI booklet and they have enclosed a copy of that aswell !

They are still in breach of the order as they did not deliver it on time nor provide a written explanation as to why, however I agree with you that this is a 'slightly dodgy one'. They knew they were up against it by providing illegible copies and that's why they've gone 'balls out' to get this legible copy.

I don't believe the time issue, along with the lack of explanation, is going to be sufficient to get it struck out !

My original order for S/O is in post number 105.

Could you please ellaborate on a 'signed statement of the account' for me.

Thanks for the advice as always gh. I feel a bit despondent at the moment. A lot of effort has gone into this, especially from you and M. I know I've got the DN to fall back on, just hoped we could see this thing off before it reached that stage.

Nevermind, chin up !

Costa

Hi All,

 

Just opened the latest offering from Cobbetts!

 

It is an amended POC as ordered by the Judge.

 

Nothing really new in the POC, just a bit of extra detail on the Claimant and information on how I cancelled the PPI (which was my choice at the time).

 

Dates mentioned of when the DN and the Formal Demand were issued.

 

And finally the amount they wish to recover.

The agreement you now have a copy off - has that got the PPI on it or was there a new agreement once you cancelled it?

Did you make any PPI repayments? if you did what happened to them - were they refunded in full back to you or were they applied to the account as credits.

Can you post up the new POC - you need to start thinking about a full defence

The copy of the agreement, I've just received, has still got the PPI on it. I cancelled it immediately, after 1 payment, which was the arrangement Tesco gave me. All the PPI was refunded to the account. No new agreement, without the PPI, was received by me if one had to be issued by them.

I'll scan in the amended POC and post later.

The copy of the agreement, I've just received, has still got the PPI on it. I cancelled it immediately, after 1 payment, which was the arrangement Tesco gave me. All the PPI was refunded to the account. No new agreement, without the PPI, was received by me if one had to be issued by them.

 

I'll scan in the amended POC and post later.

So, what you are saying is that the figures stated on the agreement provided do not actually match the real ones. They are misstated.

Not only that, they have taken more money from you (the PPI payment) towards the account

That is wrong in soooooo many ways - how do I know - well I have a similar one of my own and so has Hushpuppy on here http://www.consumeractiongroup.co.uk/forum/legal-issues/241742-hushpuppy.html

On Hushpuppy's they did exactly the same as with me (albeit a different creditor) they issued a new agreement (as they must when you cancel PPI) but it was wrong and I didn't sign - they didn't follow it up.

Your OC should have sent a new agreement with the new repayment and Total charge for credit details and teh correct APR (which will all be wrong because of teh extra credit of the PPI payment).

As it is all the prescribed terms are wrong - which is a good enough reason for a SJ against them.

BUT I'm not sure how you can produce this new argument.

A quick summary

s77 sent - no satisfactory response from OC

Claim issued by OC

CPR31 request made by OP

no response from OC

SO/SJ application made by OP grounds were that with OC still in default of s77 request no judgement could be obtained & failure of OC to comply with CPR16, 18, 31 etc

Application refused BUT DJ ordered OC to produce all docs within 14 days & leave to reinstate application if OC didn't

OC did not produce - application to restore original SJ made and accepted

date for hearing 11th May

1st May OC complies with Order !! and asks OP to withdraw application

--

Might be worth hitting the red triangle and getting one of the site team to advise.

Cheers gh. Which red triangle? The one on the left?

Amended POC is posted below.

http://i968.photobucket.com/albums/ae163/neverist_photos/POC1.jpg

http://i968.photobucket.com/albums/ae163/neverist_photos/POC2.jpg

Hope it helps.