Hi, This is the defence I am submitting for the SD - if one of you experts could take a quick look over I would be very grateful?
The debt is totally disputed
The alleged creditor is claiming payment of three sums being the balance of monies due against different credit accounts numbered xxxxxxxxx, xxxxxx & xxxxx and I have no knowledge of any of these accounts.
The alleged creditor has provided no Default Notices in accordance with the Consumer Credit Act 1974 which states that in order for it to be valid; the Default Notice must be in the prescribed manner and be correct.
Notwithstanding the above, it is also drawn to the courts attention that no Default Notices required by s87 (1) Consumer Credit act 1974 have been attached to the petition.
It is denied that any Default Notices in the prescribed format were ever received and the Defendant puts the Claimant to strict proof that said documents in the prescribed format were delivered to the defendant
Notwithstanding the above points, I put the claimant to strict proof that any Default Notices sent to me were valid. I note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without any valid Default Notices, I suggest the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co -  GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society  4 All ER 119
REFERENCE TO CASE LAW
As the creditor has not provided the credit agreement Wilson v First County Trust Ltd  UKHL 40 states that:
‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40
The Wilson case made it clear that in the event of no acceptable Consumer Credit Agreement then the creditor could not recover monies owed under ordinary contract law regardless of whether they could prove the debt existed or not – this was the decision of the House of lords and should therefore be binding in this court
The law states that without a prescribed agreement the courts may not enforce under 127(3) and
1.In the case of Dimond v Lovell  UKHL 27, Lord Hoffmann said , at page 1131:-
“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”
2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd  EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-
“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”
I also refer to Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd -  All ER (D) 187 (Jul) paragraph 29
“The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”
The alleged creditor has not provided any legible copies of the agreements referred to in the demand.
I received a letter from the alleged creditor dated xxxxxxx in respect of a Data Subject Access Request in which they stated:
“We would like to clarify that the data you will be provided will only relate to the original accounts purchase details...” which infers they do not have any information held relating to the original accounts and therefore infer that they cannot supply me with a copy of any statements or agreements relating to the demand.
I believe there are no properly executed signed Consumer Credit Agreements. If they had been able to supply these agreements then they would have done so already in order to avoid slipping in default under section 78 (1) of the Consumer Credit Act
The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)
The Defendant denies that she is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd , under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.
The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied. That is inaccurate, W.F.Harrison and Co Ltd v Burke .
The defendant requires sight of the Notice of Assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another -  2 All ER 169
I have never received any Notices of Assignment according in all respects with s136 of the Law of Property Act 1925
I respectfully submit to the court that steps to ensure service of a Notice of Assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.
Since the claimant explicitly states the notices were “served” it is assumed that this was done via the postal service.
The requirements for service via the post are
Law Of Property Act (1925) s196
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.
It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served
I did not receive any Notices of Assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.
To the best of my knowledge, any Notices of Assignment sent by registered post must, therefore have been returned to the respondent.
Consequently, I do not believe that any Notices of Assignment were properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.
I gracefully request -
The Judge dismisses the demand on the above evidence.
The Judge order the claimant to delete all adverse information held on my credit files.
The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award
In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-
Hammonds (a firm) v Pro-Fit USA Ltd  EWHC 1998 (Ch)
In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-
27. So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).
I believe the facts herewith in this form are true.