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1411mac

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About 1411mac

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  1. Hi all, I have received a general form of judgment or order from the court basically ordering the claimant to file & serve documents (which they have already admitted they don't have) as per my draft order for directions. How relevent is this to my defence? regards mac
  2. Would it be best, therefore to delete everything regarding the assignment except for: 12. It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful.
  3. Thanks, shall I remove the whole assigment section of the defence? Bearing in mind the notice from goldfish had no reference of amount?
  4. Original Goldfish letter said account assigned to Cabot Financial (UK) but to but all payments etc to cabot Financial (Europe). Since then all correspondence from Cabot Financial (Europe), Court claim from Cabot Financial (UK) Need to have my defence in by 20th Thanks mac
  5. Here is my proposed defence if anyone can give any advice as if it looks OK In the County Court Claim number Between: Cabot Financial (UK) Limited - Claimant and - Defendant Credit Agreement 1. On or around the xxxxxxxxxxxxx and in response to a letter from the Claimant Cabot Financial (Europe) Limited, the Defendant made a request for information pursuant to s77/78 Consumer Credit Act 1974 (CCA 1974) to the Claimant. The request was in writing, was accompanied by the statutory £1.00 fee and was sent recorded delivery. Proof of posting has been retained. 2. The Claimant replied on or around xxxxxxx confirming that the documents have been requested and that the original lender was experiencing a delay in retrieving the information from its archives. 3. By letter dated xxxxxxxxx Cabot Financial (Europe) Limited enclosing what was said to be the necessary documents in compliance with s77/78 Consumer Credit Act 1974. Cabot Financial (Europe) Limited stated that they were now entitled to enforce the agreement. 4. For the avoidance of doubt the documents disclosed on the xxxxxxxxxx do not constitute valid compliance with s77/78 CCA 1974. Accordingly the Claimant may not enforce the agreement against the Defendant, notwithstanding the issues pleaded in paragraphs above. 5. The document referred to as the “credit agreement” a copy of which is annexed to this amended Defence marked exhibit xx 1 is not easily legible and therefore fails to comply with Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983 6. Incomplete statements of account were provided. 7. No terms applicable at the time of the purported assignment were provided. 8. Accordingly the Claimant is not compliant with s78 (1) Consumer Credit Act 1974. 9. The Defendant is unable to plead as to any deficiencies within the agreement, nor is the Defendant able to properly assess the document disclosed as being the complete agreement by the Claimant and which the Claimant relies upon. The Defendant accepts that further to the judgment of HHJ Platt’s in HFO v Patel and HHJ Waksman Qc in Carey v HSBC that the Defendant should plead any issues surrounding any allegations of improper execution emanating from the agreement. However, since the only documents produced are so grossly illegible, the Defendant is unable to plead as to any defects. This seriously prejudices the Defendant as the Defendant is unable to assess if this document is complete, if there are other documents referred to within it, if the statutory content required by s61 (1)(a) CCA 1974 and Regulation 2 and schedule 1,2 and 6 Consumer Credit Agreements Regulations 1983 is present and accurate within the document which the Claimant relies upon. Valid Default Notice 10. It is a condition that prior to the issue of Proceedings in respect of a Regulated agreement that certain steps must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the 1974 Act and the issue of a valid termination notice, also complying with the act. 11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof. The Assignment of the Debt 12. It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101). 13. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:- 136. Legal assignments of things in action. — (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice— 14. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:- 196. Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. 15. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to a registered letter is to be construed as meaning a letter sent by a registered postal service (eg Royal Mail recorded delivery or special delivery). 16. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action. 17. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). 18. It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date, if any (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169). Sums Claimed 19. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing. 20. Further, it is denied that any alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and, in any event, unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999. 21. In case the Claimant should attempt to justify these charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5). 22. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all. Statement of Truth I, xxxxxxxxxxxx, Defendant believe that the facts stated in this Defence are true Signed ......................... ........... Dated:
  6. I have had a go at a defence and wondered if it is Ok to post it up for someone to take a look at thanks mac
  7. Hi All, I have now received a reply regarding my CPR 31.14 request as follows: http://i68.photobucket.com/albums/i27/ianmac_photos/morganletter.jpg so the way I look at it as they didnt mention any documents in the POCs they do not have to provide anything to justify their claim??? They did send the usual application unreadble copy with incomplete statements. So what's best for my defence, what do I need to defend? (Defence needs to be in by 20th) Shall I carry on by using the examples above? Any help would be appreciated. Also I have a feeling they may be using application from from an earlier account (which was paid) to claim on this one, especially as the statements dont add up so I would like to SAR them, do I send to Morgan Stanley, Goldfish or Cabot? Any help would be appreciated Rgds mac
  8. I do not think I received a notice of sums in arrears though, although I do not know what form this would take? mac
  9. Thabks for the replies, I will have a read of these carefully, yes pt2537 I did make a request under s.77/78 CCA 1974 (in Nov 08 and was charged penalyt interest during the time no cca was provided which tipped my account over the £5k level!!) Thanks mac
  10. Hi All, I have now acknowledged service on line and I believe I have until 20th to submit my defence (will check with court on Mon) No response from my CPR 31.14 request. I now have to start thinking about my defence, my pain points on this are: 1. Copy of agreement is an application form (they even sent a copy of the original envelope), is not legible, is not signed by Morgan Stanley, has a blanked out area (which Cabot cannot explain as 'this is the only copy held on file by Barclaycard ) 2. Incomplete statements (Cabot say 'copies of statements are no longer available. Under section 78 of the CCA there is no requirement to supply historical copies of docuements). 3. Terms and conditons. The copies sent prove no connection to me, the last page is endorsed by a publishing company that identify the copies sent are of a printers proof and dated after the signature date on the agreement. 4. The 'Notice of Assignment' from Goldfish shows no account number or balance. I do not know if it is relevant but I have on file a copy of a Final Notice from Morgan Stanley dated jan 2006 which says 'you have not complied with the terms of the Default Notice and as a result your account has been closed.' - Dont know if this helps? Any advice for my defence would be appreciated rgds mac
  11. Thanks will do. One thing I noticed is that I sent the CPR to morgans at the address on their letterhead and not the address on the claim, should I send another one to be safe?
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