yes i do see ok THIS IS THE DEFENCE WHICH I NOW USE..........THESE ARE NOT MY WORDS HOWEVER YOU WILL GET THE DRIFT........... 1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:- a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a egg credit card- the only matters pleaded. No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not). b) Neither the Claimant being xxxxxxx which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due c) In any event, it is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever. 2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant. 3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by " egg (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between egg credit card and the Claimant would be regulated by the terms of the Consumer Credit Act 1974. 4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement

ok in general terms all posting are correct........ however there must be an assignment. If so we want to see it............. if not how can the judge agree to it,,, it beggars belive Any absolute assignment by writing under the hand of the assignor where is it....... It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant. Lilly .....

yes this is now the hard bit............... Wait and see what comes our way lilly

Please remember we will fight this with you...............

yes and do it......................

Ok what the question is, is there an assignment as per the act, if not tell them to go and p................... in the wind I think that is very clear....................

refer them back to the act s136 Legal assignments of things in action. - [/b](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, That is what you want to see............. Read it again and undestand the act the assignor is the oc.......... also refer to common law/case law .. 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 (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824) ...

Assigning a Debt or Benefit of Contract? It is important to first provide the debtor with a notice of the assignment! Other points and issues that should be borne in mind: · In principle, the benefit of a contract can be legally assigned without consent, provided there is no express prohibition on assignment or, for example, a requirement that consent is obtained. · Where there is no restriction on assignment, the usual way of assigning the benefit of contractual rights is by statutory assignment.(they owned the debt) The assignment must be in writing, signed by the assignor, absolute (not purporting to be by way of charge only) and notice in writing must be given to the other contracting party (section 136, Law of Property Act 1925). · If a contract is not effectively assigned under statute, it may still be assigned under common law by an equitable assignment.(acting on behalf) an equitable assignment may exist where the requirements for a statutory assignment are not satisfied. The main practical consequence of an equitable assignment is that the assignee cannot bring an action in its own name against the third party, (acting on behalf) but must fall back on the rules governing equitable assignments and join the assignor as a party to the action. It is, in any event, desirable for notice of an assignment to be given to the third party because the third party will otherwise be entitled to continue to make payments to the assignor. Notice "What is a sufficient notice of assignment? There are only two or three cases on the subject. There is Stanley v English Fibres Industries, Ltd which was accepted and applied by this court in W F Harrison & Co Ltd v Burke. Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment--and that date is a wrong date--then the notice is bad. The short ground of those decisions was that the notice with a wrong date was a notice of a non-existing document. Assuming those cases to be correct, they leave open the question whether it is necessary to give the date of the assignment." Red bit is the important bit... if the date of assignment is bad... then the notice is defective. But if a document does not have a date of assignment then the notice cannot be seen to be "bad" so long as it identifies the assignee correctly... " It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is good, even though it gives no date." If the assignee is incorrect then the notice is bad even without a date... s136 Legal assignments of things in action. - [/b](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- (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and © the power to give a good discharge for the same without the concurrence of the assignor: Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice- (a) that the assignment is disputed by the assignor or any person claiming under him; or (b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925. So there will have to be a deed the deed is what we wish to see,,,,,,,,,,,,,,,,, The Assignment of the Debt 1. If the Claimant was not xxxxxxxxxx Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court. 2. 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— 3. 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. 5. 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 registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery). 6 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. 7 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 (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824) 8 It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

Variation of or modification to the original agreement is dealt with by s82 which provides as follows: "s82 (1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner. (2) Where an agreement (a "modifying agreement") varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as - (a) revoking the earlier agreement, and (b) containing provisions reproducing the combined effect of the two agreements, and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement..."

well done Lilly....................

Yes my understanding was that the creditor increased the interest rates from time to time to do this your OH would have had to sign an agreement that stated that we will vary the agreement if not they cant. So again where is the agreement that your other half signed does it have this clause.

more reading OK THIS IS THE BABY READ IT AND USE IT............. Between: SOUTHERN & DISTRICT FINANCE PLC Claimants/ Respondents - and - ELIZABETH MARY TURNER Defendant/Appellant Bradley Say (instructed by Lonsdales) for the Appellant Gabriel Fadipe (instructed by Graham Harvey) for the Respondent Hearing date : 28th October 2003 HTML VERSION OF JUDGMENT Crown Copyright © Lord Justice Brooke : This is the judgment of the court. 1. This matter has a convoluted procedural history. It is best to set out the history of the litigation first before we describe the route by which it has come to this court, and the matters we have to decide. 2. On 3rd June 1992 the claimants Southern & District Finance Ltd made a loan to the defendant Mrs Elizabeth Mary Turner. The loan was secured on her property in Formby Road, Lytham St Anne's. Mrs Turner fell into arrears, and on 21st May 1993 District Judge Woods made a suspended possession order. In due course a warrant for possession was issued, but this was suspended on terms in August 1993, these terms being later varied in April 1995. 3. On 22nd January 2001 the defendant issued a notice by which she sought permission to counterclaim for a declaration as to the enforceability of the original loan agreement on the grounds that it had not been properly executed in accordance with the requirements of sections 60 to 65 of the Consumer Credit Act 1974Acts ("the 1974 Act") and the regulations made thereunder. She also sought to re-open the loan as an extortionate credit bargain pursuant to section 139 of the 1974 Act. At the same time she sought an order that the original possession order dated 21st May 1993 should be set aside. 4. On 16th March 2001 District Judge Bryce dismissed the application to set aside the 1993 order. He granted permission to counterclaim on a limited basis, however, and gave appropriate case management directions. The trial of the counterclaim was fixed to take place on 23rd November 2001. The district judge directed that any order made on the counterclaim should be limited to relieving the defendant in whole or in part from any further obligations under the credit agreement; recovering payments she had made to the claimants on or [after] 22nd January 1995 (save as to payments made pursuant to paragraph (2)(a) of the order dated 21st May 1993); and any consequential orders as to costs. This order is said to have meant that although the defendant could maintain her contention that there was an extortionate credit bargain, she was not allowed to contend that the agreement had been improperly executed. 5. On 15th November 2001 the defendant's solicitors told the claimants that they wanted the trial adjourned because they wished to appeal the March 2001 order. They knew they were out of time for appealing the order. On 22nd November an order was made that the trial be vacated on the defendant's undertaking to file an application for permission to appeal out of time by 4pm on 30th November 2001. 6. The appeal notice was filed on 29th November 2001. It made no mention of an application for an extension of time. In due course Judge Appleton refused permission to appeal on paper. An oral hearing of the permission application was sought and fixed for 21st February 2002. Prior to that hearing the claimants' solicitors wrote a letter to the court in which they observed that the application was made eight months out of time, and that no reasons for the delay had been given. This letter was not placed before the judge at the hearing, at which he granted permission to appeal the March 2001 order on the basis that it could not be said that the appeal had no real prospect of success. The fact that the application was so long out of time was apparently overlooked. The substantive appeal was in due course fixed to be heard on 5th December 2002. 7. At the hearing of the appeal the judge took of his own motion the point at the beginning of the submissions in reply that an extension of time for appealing had never been sought. After hearing submissions, he gave a short judgment which had the effect of bringing the proceedings to an end, without any judgment being given on the merits. In due course an order was drawn up on 12th December 2002 which simply directed that the appeal be dismissed and that the claimants' costs be added to the security. 8. Because of the procedural conundrum surrounding the question of the proper destination of any further appeal, it is necessary to consider the terms of the judge's oral judgment. 9. After setting out the procedural history, Judge Appleton said that it was only at the latest hearing that it was realised that relevant procedural provisions had not been observed. He referred to CPR 52.4(2) (which requires an appellant to file an appellant's notice at the appeal court within 14 days of the relevant decision of the lower court) and CPR 52.6 which provides: "(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court; (2) The parties may not agree to extend any date of time limit set by – (a) these Rules; (b) the relevant practice directions; or © an order of the appeal court or the lower court." 10. He also referred to paragraph 5.2 of the Practice Directionpdp-52to CPR Part 52 which provides that: "If an appellant requires an extension of time for filing his notice then application must be made in the appellant's notice. The notice should state the reason for the delay and the steps taken prior to the application being made." 11. The judge then referred to the decision of this court in Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095(Bailii), which prescribes that if an application is made for an extension of time for appealing after the original prescribed time for appealing has expired, in cases of any complexity the court should follow the checklist contained in CPR 3.9 when deciding whether to exercise its discretion to grant an extension of time for appealing. 12. The judge said that on this occasion an extension of time for appealing was not sought on the appeal notice. He added that CPR 3.9 prescribed that any application for relief must be supported by evidence, of which there was none. He said he had come to the conclusion, regrettable though it was, that there was no way round the problem for the defendant. 13. He then touched briefly on the merits, and indicated that there appeared to be force in the defendant's arguments, but he concluded his judgment by saying: "It just occurs to me, if there is anything to be salvaged from the, as it were, wreckage of failure to comply with the rules, that if there is a sound argument then whenever the court in this particular case or with these particular parties is being asked to make an order the arguments can be revisited, but regrettable as it is, this has been an oversight on the part of the defendant's advisers which I simply, in the light of the Court of Appeal's guidance in Sayers v Clarke Walker, cannot see any way round. For these reasons the appeal is bound to fail." 14. The judge clearly thought that he was making an order dismissing the appeal, because he told the defendants' counsel that any application for permission to appeal would have to be made to this court. As we have said, his order was subsequently drawn up in those terms. When the Notice of Appeal was filed in this court, however, a question was raised whether the appeal properly lay to the High Court or to the Court of Appeal. On 13th May 2003 Brooke LJ adjourned the paper application for permission to appeal to be heard on notice with the appeal to follow if permission was granted. He also gave the following directions: "The court will first consider whether it or the High Court has jurisdiction to hear the application. If it decides the High Court has jurisdiction one judge of the court … will immediately sit as a High Court judge (under section 9 of the Supreme Court Act) and hear the application, with the appeal to follow if permission is granted." He said that he was directing this course because of the procedural complexities to which the matter gave rise. 15. The parties did not themselves address these procedural complexities until prompted to do so by a note prepared by Deputy Master di Mambro which was sent to them by a direction of the court last week. In response to this note the defendant contended that her appeal was directed at Judge Appleton's refusal to exercise his discretion to waive the irregularity pursuant to CPR 3.10 and thereafter to apply the criteria contained in CPR 3.9 in determining whether or not to grant an extension of time. In that case the appeal would lie to the High Court because it would be a first appeal, not a second appeal (Foenander v Bond Lewis & Co [2001] EWCA Civ 759(Bailii); [2002] 1 WLR 525). 16. The claimants for their part suggested that there were at least four different ways of analysing the judge's decision: (i) The judge dismissed the appeal on the grounds that permission to appeal should not have been granted. They accept that this analysis can arguably be criticised because the judge never determined the actual substance of the appeal. (ii) The judge refused to entertain an application for an extension of time. They rejected this analysis on the grounds that the judge's substantive reason for doing what he did was that there had been no such application and there was no evidence on which he could entertain an application. (iii) The judge revoked his grant of permission to appeal pursuant to CPR 3.1(7). In that case there would be no scope for Mrs Turner to appeal against his decision, since the refusal of permission to appeal by a first appeal court is not susceptible to appeal to a second appeal court. (iv) The judge set aside his grant of permission to appeal pursuant to the exceptional powers conferred on an appeal court by CPR Part 52.9(1)(b). 17. Mr Fadipe, who appeared for the claimants, suggested that the fourth analysis was correct (although he conceded that there was much to say in favour of the third). He cited in support of his approach a passage in the judgment of Sedley LJ in Hartsmere Borough Council v Harty [2001] EWCA Civ 128, in which he said: "… (if) the Judge was misled by an Appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the Rule. It must … involve showing (a) that the materials put before the judge were inaccurate or incomplete; (b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and © very importantly, that but for them permission to appeal would not have been given." 18. We have had the opportunity of considering the transcript of the proceedings before the judge. When he observed that no application had been made to extend the time limit for appealing, Mr Say, who appeared for the defendant, said that he made that application "if it is necessary". The judge told him that he could not, since such an application had to be supported by evidence. After debating this question for a while, Mr Say drew the judge's attention to CPR 3.10 which provides that: "Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error." Mr Say submitted that the purpose of CPR 3.10 was to catch a situation like this where there had been a procedural irregularity but the justice of the case required that it should be overlooked. 19. Although the judge does not mention CPR 3.10 in his judgment, it is clear that he rejected Mr Say's submission on the basis that the requirement to file evidence in support of an application for an extension of time was in his view mandatory, and that a failure to file evidence was irremediable. 20. The judge certainly did not refuse permission to appeal: his judgment shows that he considered that the underlying point at issue was arguably a good one. Nor did he dismiss the appeal on the merits. Whether the correct analysis is that he decided he had no jurisdiction to hear the appeal (it now not being open to the defendant, for want of evidence, to apply to extend the time for appealing), or that he decided, without expressly saying so, not to grant the extension of time informally sought at the hearing, the result is the same. This was not an order made by a judge on hearing the appeal, such that any appeal could only lie to this court as a second appeal. It was an order of the type discussed in Foenander v Bond Lewis [2001] EWCA Civ 759(Bailii); [2002] 1 WLR 525 which is susceptible of appeal as a first appeal to the next higher court in the hierarchy. For these reasons we told the parties at the hearing that the application for permission to appeal should therefore be heard by a High Court judge. 21. This is at least the third occasion this year in which difficulties over appeal routes have arisen because insufficient attention was paid to that question when the order of a court was drawn up. In Hackney v Driscoll (No 1) [2003] EWCA Civ 614 it was not clear whether an order made by a circuit judge was made by a judge of the county court at first instance, or by a circuit judge in an appeal court. In Fowler de Pledge [2003] EWCA Civ 703(Bailii) it was not clear whether a circuit judge sitting as a first appeal court had directed that a matter should be heard by another circuit judge as an appeal by way of rehearing, or as a rehearing of the original application. In the present case not nearly enough attention was paid by either the judge or by counsel to the true nature of the order that was made. 22. As a result, a lot of avoidable trouble and expense was caused before the correct appeal route was ascertained. We hope that every effort may be made in future to ensure that attention is paid to the precise nature of any order being made, so that the appeal route, if any, can be readily and correctly identified. (Lord Justice Brooke then considered the application as a High Court judge pursuant to section 9(1)(a) of the Supreme Court Act 1981Acts and directed that the application be heard by the Court of Appeal pursuant to CPR 52.14(1)(b). He said that the compelling reason for taking this course was that there had already been excessive delay in this matter and that it was appropriate that it should be heard immediately by a three-judge Court of Appeal. There follows the judgment of the Court of Appeal on the substantive appeal.) 23. Mr Say accepted that there was no evidence before the judge, and no evidence before this court, to support the application for an extension of time. He said, however, that this was a procedural irregularity which could be waived pursuant to CPR 3.10, as could the failure to apply for an extension of time for appealing, whether on the original notice of appeal or by subsequent amendment. He submitted that we would not be able to understand the very unusual features of this case unless we first understood the argument which the district judge's order had shut his client out from advancing on her counterclaim. 24. She wished to contend in paragraphs 3-5 of her draft defence and counterclaim that the original credit agreement was not "properly executed", and that the consequence of three of the matters of which complaint was made was that section 127(3) of the 1974 Act gave the court no discretion to enforce the agreement. She therefore sought a declaration that it was unenforceable. As to the other two matters, she accepted that the court had a discretion pursuant to section 127(1) of the Act whether or not to permit it to be enforced, but she asserted that the court should in its discretion permit no further enforcement having regard to the payments already made. 25. It is unnecessary for the purposes of this judgment to describe in any detail the complaints she made. Her first three complaints centred round a number of failures to comply with regulation 6 and Schedule 6 to the Consumer Credit (Agreements) Regulations 1983 in relation to the manner in which the figure for credit was stated (or alternatively, not stated). 26. Mr Say argued that it was common ground that the defendant could take this point if there was ever any question of the claimants wishing to enforce their possession order (see Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159)(Bailii), and in those circumstances it would be consistent with the overriding objective if the defendant was permitted to take the point now, so that the matter cold be cleared up once and for all. He said that if the defendant was permitted to add to her counterclaim paragraphs 3-5 of the draft defence and paragraph (i) of the prayer (which sought a declaration as to the enforceability of the credit agreement and/or the mortgage deed) that issue could then be heard as a preliminary issue which could not possibly take more than a day to try. If, as he anticipated, the defendant succeeded, this would avoid the need to conduct a hearing on the "extortionate credit bargain" issue for which a 3-day hearing was being sought. 27. Mr Say said that he would not oppose a condition being imposed on any order the court might make which would have the effect of barring the defendant from claiming restitution of any past payments she had paid in relation to this matter. 28. Against this background he submitted that in the peculiar circumstances of this case the court should overlook the fact that no evidence had been filed in support of the application for an extension of time. He impliedly invited us to permit an amendment of the notice of appeal, so that it included an application for an extension of time, and to consider his application without any evidence. In this context he invited us to presume that his client herself was not at fault, still less that she had deliberately instructed her solicitors not to appeal the district judge's order soon after it was made. 29. In these circumstances Mr Say made the following submissions in relation to the CPR 3.9 check list: (a) So far as the interests of the administration of justice were concerned, the issue would have to be determined sooner or later and it would be very much better if the point could be determined quickly as a preliminary issue, particularly in the light of the savings in court time that would be achieved if the point is a good one. (b) The application for relief was not made promptly. © The judge accepted that the failure to comply with the time limit was not intentional, and we were invited to do the same. (d) In the absence of explanation, we were entitled to assume there was no good explanation for the default. (e) It was common ground (but see para 31(e) below) that there had been no previous history of non-compliance with other rules, practice directions or court orders. (f) We were invited to presume that the failure to comply was caused by the defendant's legal representatives. (g) The trial date for the counterclaim had already been adjourned, and if permission to take this point is granted, and the point is a good one, the projected trial need never take place. (h) It is accepted that the failure to comply has caused delay to the claimants, but if the defendant is not permitted to claim recovery of money already paid, the claimants will suffer no prejudice because the issue will have to be tried in any event. (i) The granting of relief would have a beneficial effect for both parties since if the point is a good one the litigation can be brought to an end more swiftly and expeditiously than would otherwise be the case. 30. In response to these submissions Mr Fadipe submitted that rules were there to be obeyed. CPR 52.2 states that the parties to an appeal must comply with the relevant practice direction, and paragraph 5.2 of the Practice Direction (see para 10 above) also uses the mandatory word "must". He conceded that CPR 3.10 gave the court the power to waive an irregularity of this kind if it was just to do so, but CPR 3.9 also prescribed that an application for relief "must" be supported by evidence, so that we would have to waive that requirement, too. He said that we were not entitled to presume that the defendant had not given her solicitors specific instructions that she did not wish to appeal the district judge's order at the time it was made. He also complained that the defendant's solicitors had not honoured their undertaking (see para 5 above) to file an application for permission to appeal out of time. 31. Against this uncompromising background, Mr Fadipe's submissions in relation to the application of CPR 3.9 followed a fairly predictable course. In so far as they differed from Mr Say's submissions, he contended: (a) That it was not in the interests of the administration of justice that a litigant should be able to obtain an order for an adjournment of a trial on the basis of undertakings given by her solicitors to the court, and that those undertakings should then be ignored. Nor was it in the interests of the administration of justice that the court should overlook the breaches of mandatory rules, since this conduct inevitably led to satellite litigation. The appeal against the March 2001 order was eight months out of time. (e) Whilst there was substantial compliance with the directions in the March 2001 order, there was an eight-year delay in applying to set aside the May 1993 order. (h) The failure to comply has caused the claimants not only delay but also significant costs which may well prove irrecoverable. (i) Because the trial of the counterclaim is concerned with a quite different issue, and the issue raised by paragraphs 3-5 of the draft defence and counterclaim can be properly raised if his clients ever sought to enforce the possession order, the appeal to Judge Appleton, and indeed the present appeal, is somewhat academic. 32. In our judgment the judge was clearly wrong to hold that he had no power to correct the irregularity pursuant to CPR 3.10. He had already concluded that the appeal had potential merit, and CPR 3.10 unquestionably gave him power to give the defendant permission to amend her notice of appeal (to include an application for an extension of time) and to waive the requirement for evidence if he considered it just to do so. The defendant was clearly at mercy, but if the judge had appreciated the extent of his powers, he would have appreciated not only that he had power to waive the irregularities, but that if the point the defendant was raising was a good one to allow the appeal out of time might well lead to a much more expeditious outcome to the litigation than was otherwise in prospect. 33. He could also have mitigated any potential injustice to the claimants by imposing a condition when granting the appeal to the effect that the defendant was not to be at liberty to claim the recovery of any of the money she had paid to the claimants in the past even if the credit agreement were ultimately held to be unenforceable. The value of the court's power to make conditional orders pursuant to CPR 3.1(2)(a) was illustrated in three cases decided by this court in July 2003: Price v Price [2003] EWCA Civ 888(Bailii); [2003] 3 All ER 911; Beck v Ministry of Defence [2003] EWCA Civ 1043(Bailii) and Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162(Bailii). In the last of these cases Brooke LJ observed at para 28 that: "This new power to make conditional orders gives a court a greater flexibility to make orders that are both proportionate and just than used to be the case when the court's powers were limited to saying 'yes' or 'no' in response to applications of this kind." 34. The new CPR regime does not lend itself to the cast-iron rigidity which was reflected in Mr Fadipe's submissions. Of course judges at every level must be astute to correct sloppy practice and to avoid at all costs slipping back to the bad old days when courts took a relaxed attitude to the need for compliance with rules and court orders, so that expensive and time-consuming satellite litigation was only too apt to flourish. But judges must also keep in mind the overriding objective, and be ready to recognise the case where an appropriately drafted conditional order may achieve justice more effectively than merely saying "yes" or "no" to the application that is being made. 35. In our judgment, the interests of the administration of justice clearly demand that the issue raised by paragraphs 3-5 of the draft defence be tried as a discrete issue at an early date. It would not be in anybody's interests to leave the question whether this credit agreement is enforceable at all to hang about in the air until such time as the claimants elect to enforce their possession order. Mrs Turner is at present only paying interest on the loan. If she stopped paying altogether, the claimants would no doubt wish to bring the situation to a head by seeking to enforce their order. It would be very much better if the trial of the issues was now organised in an orderly manner, so that there will be no question of any need for an extensive hearing on the "extortionate credit bargain" issue if the "unenforceable credit agreement" point turns out to be a good one. Any injustice that might otherwise be suffered by the claimants due to the dilatoriness of the defendant and her solicitors can be mitigated by imposing the condition we have suggested. 36. We will therefore allow the appeal and permit the defendant to amend her original notice of appeal by adding an application for an extension of time for appealing. Although in theory we could now remit the matter to the circuit judge to allow him to determine the appeal, it would be thoroughly undesirable if we were to do so, given the length of the delays that have taken place since the district judge made his order. 37. We turn therefore to the district judge's order, of which Mr Fadipe has submitted a short note (which has not been submitted to the district judge for approval). It appears that the district judge declined to set the 1993 possession order aside on the basis that he had no jurisdiction to do so, and there was no application for permission to appeal against that order eight years out of time. He does not appear to have been invited to direct the trial of the issues arising on paragraphs 3-5 of the draft defence and counterclaim as discrete issues. Argument ran instead on the appropriateness of setting aside the 1993 possession order and the length of time over which the defendant could counterclaim the recovery of payments made in the past. 38. In our judgment, in view of the way in which the argument has developed on the appeal we are entitled to interfere with the district judge's order not because he was clearly wrong on the matters that he did decide, but because he did not take into account material matters (such as making a conditional order or the desirability of ordering a discrete preliminary issue on the enforceability issue) which could have led him to exercise his discretion differently. 39. In these circumstances we are entitled to exercise our discretion afresh. We will therefore add an additional paragraph (1A) to the district judge's order to the effect that: "The Defendant may also counterclaim for a declaration as to the enforceability of the credit agreement and/or mortgage deed and/or of specific provisions thereof on the grounds set out in paragraphs 3-5 of the draft defence and counterclaim sent to the court under cover of her solicitor's letter dated 23rd January 2001 on the condition that if the said documents or any of them are held to be unenforceable the defendant is not to be at liberty to claim restitution of any of the monies paid by the claimants prior to the date of this order. " 40. The cost of all this ancillary litigation appears to be almost entirely attributable to the way the defendant's solicitors have handled the matter. If the matter had been put before the district judge in the way that it has been put before us, no doubt he would have made a similar order and all the subsequent expense, which was increased by their failure to appeal timeously or to prepare their application for an extension of time correctly, could have been avoided. 41. In these circumstances, although we are willing to hear argument on the point, we would be disposed to direct that the defendant pay the claimants their costs of the appeals both to Judge Appleton and to this court, such costs to be added to the security. We have been told that the defendant has a legal aid certificate. In these circumstances, on any assessment of the defendant's costs, the costs officer or costs judge should deduct any sums properly to be designated as "wasted costs" which are attributable to the negligent way in which the appeals against the district judge' order appear to have been conducted under the defendant's certificate. 42. If the parties can agree on the terms of an order whereby the issues arising under paragraphs 3-5 of the draft defence can be expeditiously tried as a preliminary issue before a circuit judge, we will be happy to make such an order when this judgment is handed down.

My APLOGISE I have not been a round. I see that you are having issues in regards to the main points for the set a side. I/ the agreement if any is unfair why because you have NOT had the opportunity to see it as per your request. 2/ we do NOT agreed with the sums as we have not HAD the opportunity to see the full accounts for the term of the agreement. 3/. The creditor continually increase the interest rates in the belief that the agreement was an agreement which could be varied this is denied if alleged 4/ we now seek clarification from the court on these points as we now believe that a injustices was deliver in the original court case as we where wrongly advise. Ok HOPE THIS HELPS

http://www.nationaldebtline.co.uk/england_wales/pdf/n244_form_example.pdf

Include the the claim number of the case and details of the creditor or ‘claimant’. Question 1: fill in your name here. Question 2: you will normally tick the box as the ‘defendant’. Question 3: you need to briefly state what order you are asking the court to make and the reasons for your request. Question 4: this asks if you have attached a draft of the order you are applying for. We would suggest that you only tick ‘yes’ to this if you have had help from a solicitor or advice agency with drafting the order. Otherwise, leave this up to the court. Question 5: this asks you if you want to have the application dealt with at a hearing. Most applications will be dealt with at a hearing. Question 6, 7 and 8: it is safer to leave these blank rather than guess how long a hearing will last or what level of judge you need at the hearing. Question 9: only fill this in if there is someone you want the court to send a copy of the application to, such as your solicitor. Question 10: this appears on the back of the form. You should tick the box saying you are relying on ‘the evidence set out in the box below’. You need to include any evidence you have to support your case, such as proof you have changed address or were out of the country. Any information you have about your possible defence should also be included. You should explain any delay in making the application. Sign the statement of truth on the bottom of the form. Send the form back to the court and remember to keep a copy. Information A sample application N244 is at the end

Mj well done the day is yours,and yours alone, i know at times you felt alone however be assured, you where not.... As always my regards LILLY WHITE

The defendant totally disputes the debt. The alleged creditor has provided no enforceable consumer credit agreement that contains the prescribed terms. The alleged creditor has not provided any default notices in the prescribed form. The alleged creditor has provided no statements for the duration of the account. (it not being uncommon that some debts are made up entirely of excessive penalty charges) The alleged creditor and the alleged original creditor has not provided any valid notices of assignment. Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to XXXXXX. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any valid copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist), SECTION 78 (1) CONSUMER CREDIT ACT 1974 (1) The creditor under a regulated agreement for running-account 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,— (a) the state of the account, and (b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and.. © the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. The Consumer Credit Act in section 78(6) States that (6) 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; It must also be noted that the agreement must contain the prescribed terms. Consumer Credit Act 8.2 What if prescribed terms are missing or incorrect? s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order. (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation…… The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) Citation 1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007. Interpretation 2. In this Order “the 2006 Act” means the Consumer Credit Act 2006. Commencement 3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007. (2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007. Transitional Provisions 4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont) 5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in— a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act; (b) section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and © section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act, in relation to agreements made before 6 April 2007) REFERENCE TO CASE LAW As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] 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 [2000] 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 [2001] 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 refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] 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.” If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued. DEFAULT NOTICE The Need for a Default notice Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the demand. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope, dating 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 a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974 Section 87(1) of the CCA 1974 says:

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum....

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is. 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a 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 [1996] 4 All ER 119 The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim 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 [1915], 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 [1956]. 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 in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169 The alleged creditor has not 'served' anything on me, but simply posted a demand by first class - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process. I refer to: Judge Boggis QC - RE AWAN - [2000] BPIR 241 'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON. As a lone parent/low income earner/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court. I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount. 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 [2007] 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). Use this and this alone do not go into any other detail apart from that, it is not for you to prove anything, but to them. So you do not know them.............. its all to them

ok are you well, just looking in, please follow the advice you have been given. I will keep a look out for you and will help when needed. Please sleep well you are in safe hands BR lilly white

Northstar. if it was me i would fight back not easy i know.............. however you are a member of this forum. To you of course Kind regards lilly white

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

B2. I SEE YOU HAD A GOOD DAY IN COURT WELL DONE....... Ok well the reason we seek the deed is this. 1 THEY MAY NOT HAVE ONE......... 2 WE SEE WHAT THEY PAID FOR THE DEBT KICKS THE MORAL QUESTION OUT THE WINDOW I DO BELIVE IN VJOHNS CASE THEY ONLY PAID FOR THE DEBT IF THEY GOT PAID AND AS LITTLE AS 3%.......... 3 ALSO IN SOME CASES THEY CANT PRODUSE THE DEED AND ALSO THE BUYER OF THE DEBT DOES NOT HAVE UK COMPANY NO STANDING IN COURT. O HAPPY DAYS VIVA CAG...............

O bless the judge he/she was talking about novation

how did the DCA know your new address as you say fishing......... Well to you, i would wait now and see what comes your way. however to you....................But do not acknowledge,the NOA as outline. May i wish you a happy Easter. Viva cag lilly white

yes WHEN YOU STOP PAYING AFTER THAT THERE CAN BE NO ACKNOWLEDGEMENT FOR 6 YEARS

Yes thank for the case very interesting i have read it once and will read it again, It does put a light on WP letters ,