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kilnerd

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About kilnerd

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  1. Thanks, but never had any type of card, store or credit, with them.
  2. ah ****! Submitted it. Doesn't look like I can amend it.
  3. ok... The particulars of the claim are as follows: 1.The Claimant claims the sum of 2,293.29 being monies due from the Defendant to the Claimant under a regulated credit card agreement on 21/06/1997, originally between the Defendant and M&S Financial Services. 2.On 29/05/2012, the defendant defaulted on the agreement with the outstanding balance of 2,293.29 3.The Defendant's account number was************* and was assigned to the Claimant on 30/04/2014, notice of this has been provided to the Defendant. The Claimant claims the sum of 2,404.79 and costs.The Claimant has complied, as far necessary, with the pre-action conduct practice direction. Proposed Defence 1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made. 2. Paragraph 1 is clearly not correct, M&S Financial Services is a subsidary of Marks & Spencers. M&S did not accept credit cards in-store until 2000 and did not issue their own through M&S Finance until 2003. 3.Paragraph 2 is denied as there was no credit card agreement. 4.Paragraph 3 is noted however I have no recollection of being served with any Notice of Assignment. 5.It is also denied I have been served with a Default Notice pursuant to the consumer credit Act 1974.As the Assignee of this alleged debt the claimant would not be aware whether one had been served or not. 6.The Claimant has not complied, as far necessary, with any pre-action conduct practice direction.They have never contacted me with regards to this alleged debt nor have I ever heard of them up until receipt of this claim. 7.Notwithstanding the above a request was made under the customer credit Act 1974,by way of a section 77/78 for a copy of the agreement, and on payment of the statutory fee of £1.00; the Claimant is and remains in Default of said s77/78 request.Any Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default by reason of Section 78 of the Act. A further request made via CPR 31.14, after the claim had been issued, requesting disclosure of documents on which the Claimant is basing their claim. The Claimants representative issued a reply that they will forward the request on to the claimant 8. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to: a) show how the Defendant has entered into an agreement with the Claimant; and b) show how the Defendant has reached the amount claimed for; and c) evidence any nature of breach and provide proof of any Default Notice and Notices of Sums in Arrears;and d) show how the Claimant has the legal right, either under statute or equity to issue a claim; 7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. 9. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of section 136 of the Law of Property Act and section 82A of the Consumer Credit Act 1974. 10. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default as set out above and by reason of Section 78 of the Act. 11. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
  4. Sorry Andy, never been taken to court before so new to it all, this isn't the only forum I've been looking through did a bit of searching - didn't know there was a success forum. I think this looks correct - I'm not sure which dates are 5 and 9. The first (5) must be the claimant which I sent on 12/01 and 9 I'm guessing is MB CPR which I sent on 02/01? Below is the defence that they've not supplied any copy of agreement etc, but I do have a bit more of a robust defence. What I'm not getting in here is the wording that the credit card debt agreement or debt cannot have existed in 1997, I'm guessing this actually should be my first line of defence, as it were!? I do appreciate your time and effort! ------------------------------------------------------------------------------------------------------------------------------------------------------------------------- I deny all allegations made in the claimants Particulars of Claim and put the claimant to strict proof thereof. The claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters; a)The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant’s claim. b)A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. c)A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form. 4.Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet. 5.In respect of that which is denied, on 12/01/2015 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. 6.Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states s78 (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; and (b) if the default continues for one month he commits an offence. 7.It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor 8.Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists 9.Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 02/01/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest , alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. 10.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. All I have received in relation to my request is a letter from the claimant stating I am placing an unfair burden on the claimant by requesting the disclosure of the said documents. 11.It is denied, as suggested in point 10 that it is an unfair burden being placed upon the claimant with regards to my request for disclosure and the courts attention is drawn to the fact the claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents 12.The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment ) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-- 1.Number of repayments; 2.Amount of repayments; 3.Frequency and timing of repayments; 4.Dates of repayments; 5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 13.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced 14.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." 15.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 particulars of claim 16.It is neither admitted or 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 17.Notwithstanding point 15, 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 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) 18.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 19.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974 20.In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16. 21.Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules 22.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable. 23.I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents
  5. ok - thanks - I'll stick in what I've written
  6. Hi again, I need to put my defense in. CPR 31.14 sent to Solicitors 02/01/15 got response saying they will pass on the request to the client CCA sent to 1st Credit 12/01/15 - No response to date. Claim is for a credit card contract taken out in 1997 with M&S I've never had a credit card or applied for one with M&S and it would have been physically impossible in 1997 Marks & Spencers didn't accept any credit cards in-store until April 2000 (http://www.theguardian.com/money/2000/apr/17/business.personalfinancenews2) 2003 M&S piloted their own credit card in South Wales (http://www.newsroom.hsbc.co.uk/press/release/the_history_of_financial_servi ) Is there a template for putting my defence or what is the best way to word this, or just put in what I've stated above? Thanks
  7. OK, what do I use as the Account Reference as I probably haven't kept anything from them?
  8. ok thanks Just wait on them then really, I guess I have to put a defense in before a certain date. I left that blank when I denied the claim.
  9. in reply to ANDYORCH; Name of the Claimant ? - 1st Credit (Finance) Limited Date of issue – top right hand corner of the claim form – 23/12/2014 What is the claim for – credit card debt What is the value of the claim? - 2600ish Is the claim for a current or credit/loan account or mobile phone account? _ credit card When did you enter into the original agreement before or after 2007? - They claim I entered in to the agreement 21/06/1997 Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. - Debt purchaser Were you aware the account had been assigned – did you receive a Notice of Assignment? - Might have done Did you receive a Default Notice from the original creditor? - Might have done Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Don't know Why did you cease payments? Didn't make any as far as I'm aware What was the date of your last payment? - See above Was there a dispute with the original creditor that remains unresolved? No Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan? No
  10. UPDATE: sent a CPR 31.14 on 02/01/15 to MBeever. Recieved a reply dated 06/01/15 stating they will provide the documentation requested when provided by their client. Now, they've not provided documents and not asked for an extension to the 7 days what's my next step? And thanks for all your help.
  11. ok - thanks. I'll get a CCA off to 1st Credit and a 31.14 to MB tomorrow Thanks
  12. But I did have some weird loan with them at about that time
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