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Phantom943

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  1. Heres my draft defence: In the xxxxxxx County Court Claim number xxxxxxx Between Arrow Global Limited- Claimant and xxxxxx- Defendant Defence 1. I xxxxxxxxxxxxx am the defendant in this action and make the following statement as my amended defence to the claim made by Arrow Global Limited. 2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and practice direction 16 of the Civil Procedure Rules. 3. On 26/10/2016 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit CGQ4) I requested the claimant supply this information within 12 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documentation. 4. The claimant refused to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. The Claimant has kindly provided evidence of this (see Exhibit CGQ4, Letter dated 22/11/2016) I respectfully ask the court to consider a letter from the claimant which was contained within their witness statement (see Exhibit CGQ3, letter dated 13/09/2016), which clearly states Notification of Account Transfer to New Agency, and clearly states that all enquiries, correspondence and payments should be directed to Restons. The original claim form also included such references; therefore, I can see no reason other than to frustrate the proceedings why the claimant would refuse any requests for information. However, the claimant has supplied some of the information, and now after consideration of the documents which have been supplied I can now make a fully particularised defence to the claimants Particulars. The Claimant has submitted a second Witness Statement: 1st Statement of Amy Wagg. Contained within that statement are a number of comments which are denied by the defendant. At 5.2 the claimant assets that it was not in default of the Section 78 request “she made a request pursuant to Section 78 of the Consumer Credit Act 1974 prior to legal proceedings being issued…” And refers to Paragraph four of the defendant’s witness statement, the defendant’s actual words are totally contrary to Wagg’s statement in that there is absolutely no doubt the defendant clearly stated: “4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Marks & Spencer Financial Services Plc. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request. At the time of submitting my defence the claimant was in default of this request and refused to comply with this request and was therefore unable to proceed and enforce the claim or request any relief. The claimant is put to strict proof to verify and confirm that the exhibits at paragraph 2 marked CGQ2 are the true terms and conditions as issued at the time of inception and execution of the agreement. The claimant further asserts at 5.3 that: The Defendants request was not compliant in that it did not contain the Defendant’s signature and the statutory fee was made payable to my firm, no valid request has been made” The claimant fails to cite any law where it states any such request must contain a signature or provide any evidence of such a requirement, the issue regarding the statutory fee is addressed above at the beginning of paragraph four. The request was and remains in default 5. After consideration of the documents referred to in point 4; I consequently deny the allegations made in the claimant’s particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof 6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 7. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts 8. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). 9. 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 10. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document headed Terms and conditions. There is no apparent link between the terms and conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974 11. Furthermore, on the copy of the purported credit agreement supplied and that the claimant exhibits as CGQ1 which they refer to as a true copy of the executed agreement. It is averred that the disclosure purports to no more than an application form a pre-executed application form which is deficient of the prescribed terms. This renders the exhibit as unenforceable pursuant to section 127 (1) & (2) of the CCA1974 as the alleged date of the agreement is dated 14th October 1989 and the amendments of the CCA2006 are not retrospective to agreements entered into pre-April 2007. Furthermore the exhibit comprises of a single side (front) which is incomplete and barely legible. 12. I refer to the judgment of: TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said: "33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest misstated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1." 13. Furthermore 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. With regards to the Authority cited in point 21, 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. Therefore, I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances. 16. should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement unenforceable. 17. In addition to the credit agreement being irredeemably flawed, the claimant has failed to provide any evidence that a Default Notice has been served under s87 (1) Consumer credit act 1974. Thereby the alleged original creditor has failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The claimant is therefore put to strict proof that such notice was served as required. The notice should clearly state the date by which the breach must be remedied before and allow the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2 Details of breach of agreement and action required to remedy, or pay compensation for, the breach A specification of:-- (a) the provision of the agreement alleged to have been breached; and (b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either © if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or (d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid. 18. The claimant asserts they have been assigned the account in question but has failed to provide any evidence other than hearsay to confirm their position with references to the claimants in house correspondence, furthermore they assert in Quinn’s Witness statement at 7.3 “It is the claimants position that a notice of Assignment was issued to the defendant around the time that her account was assigned by Marks and spencer Financial Services PLC.” The Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. 19. 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). 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. 20. The claimant has had in excess of fourteen months in which to supply the requested documentation, and to date has failed to produce any evidence offering a reasonable excuse as to why it has failed to do so. Statement of Truth I xxxxxxxxxx, believe the above statement to be true and factual Signed ..................... Date
  2. I see where you are coming from with this, however the court's direction was to file a Substansive defence by Friday. I ve made my point about the so called agreement and highighted a few other omissions and had a dig at their second witness statement. Will post the draft up in a while once ive completed it.
  3. Their POC is very Vague and consists of the foillowing: The Claimant claims payment of the overdue balance from the defendant/s under a contract between the defendant/s and Marks and Spencer Financial services PLC dated on or about Oct 14 1989 and assigned to the Claimant on Feb 21st 2013.
  4. The application was for Marks and Spencer Account Shopping. The form then goes on to say its a Marks and Spencer Account Card. I have just noted a few more points, The 1989 document only mentions Budget Card and Charge Card no mention of M+S Account card as per the application form. Thinking more widely, if these supposed T&C's were on the back of an application form, then the account holder did not receive them as they formed aprt of the application which was sent away to be signed off. There is absolutely no evidence at all that they were sent out an any point thereafter. As for the 2004 T&C's there does appear to be a discrepancy, the document correctly identifies the account type as being ACCOUNTCARD (note the typo) then goes on to say "the clauses below are taken from the M&S Account card terms and conditions. The definitions and other terms and conditions are set out in full in your copy of the terms and condition. Theres then a clause relating to interest and variations of interest which says "Interest is chargeable as explained in clause 7" only problem is clause 7 in the supposed 1989 document does not relate to interest. i suspect very strongly the 2004 document has been made up, particularly regarding the Typo's and some of the strange spacing used in setting out a number of paragrapghs. Neither document has an M&S logo.
  5. Apologies for any confusion. We have a photocopy of the application form which is signed by both parties from 1989, they have provided two copies of T&C's one of which they say is from 1989 The other they say is from 2004, though interestingly they are saying that these T&C's were in place when the account was terminated in 2011
  6. Looking at the application form with regards to T&C's. Post No9 page ten. In the top right hand box it makes reference to "see over" relating to lost or stolen cards. The purported T+C's supplied (there were two) are obviously not a photocopy of the original as the print is far too clear but does corresppond to the section mentioned on the application form. My question is then, does this confirm that the T&C's were not within the four conrers of the form, or could it be successfuly argued that they were supplied at the the point of inception. In any case my point would be they are not a copy of the actual form or part of at the point signing the application form. I note also that the supplied copy is not complete as there is clearly parts missing from both the top and bottom of the form, but is this enough to state it is incomplete. Cheers.
  7. Interesting, however this may not be of much use to me as i cannot be sure that the card was changed and even if it were i have no evidence it was changed or indeed when that would of been. My gut feeling is that it was changed hence the rather vague details provided regarding transactions etc, which only show debits and credits to the account and are watermarked M&S bank, not M&S Fincial services. Another issue ive noted is that the application form appears to have been over stamped with a serial number, however thsi number does not reflect any part of the account number, in effect there is no account number on the application form/ agreement either before or after inception.
  8. I will be drafting the defence throughout the day. Two quick questions. 1. A 1989 M&S Storecard/ Charge Card: what type of credit agreement would of been inferred would it be a rolling credit account or credit card at the point of inception. 2. PPI: would this forma part of the same application or be treated as a wholly sperate matter. Im assured nothing re PPI was ever sent only verbal information by the individual filling o
  9. Good morning and Happy New year. Pages 11&12 of their WS are the two seperate documents in question.
  10. Many thanks. They have provided two sets of what they say are T&C's my point will remain they are not contained within the four corners of the application form. No notice of assignment, from memory i think thier WS points to theres suficient information contained within other documents, im going to be making a big point that their agent went to court and stated that the docs were available, just not on the day then back tracked a little and was in the process of saying it takes time to produce, at which point the Judge stopped her. I'm looking for a nice choice of words to suggest that 13 months from request is reasonable amount of time in which to have supplied these and they havent or have witheld them for whatever reason. Some help with suitable words would be great. The point about authorised payments.... this would of been payplan or similar i wasnt involved in that aspect and the other half has no recollection of what the arrangements would of been. Again soem suitable words may be hellpful if its thought this avenue is worth following. I saw a thread regarding costs, im unable to find it again but there did appear to be some good argeuments against their costs, if someone canb recall the thread and point me in the right direction that would be helpful. Theres also contained within their WS references to Default notice, we are sure there was no default notice sent to us or indeed a termination notice, again pointers on how to cover this aspect may be helpful. Many thanks once again.
  11. Seasons greetings all. I have some work to do this week in assembling a defence for this matter. Starting with the original Application for credit, im looking for people's views on this. The document can be found in post 9 and is page ten of the attached PDF. Im particularly looking for views on whether or not this is enforceable as my thrust of arguement will be that it does not include the prescribed terms and conditions within the four corners of the document. Is there anything else which could constitute a defect? and how do i go about setting this out in document form. Many thanks in advance.
  12. Apologies for the typo it should of course read substansive defence Sorry you've lost me with this, please explain.
  13. Update: Over booked court list which resulted in a very very short hearing over what should of been lunch break. Judge made it clear he didnt want to spend very long on this and gave each parrty five mins max to have their say. Restons (im assuming agent) took the usual line theres a credit agreement, failed to pay and wanted defence struck out and summary judgement etc. Judge was desperate to get rid of this informs me i havent produced a substansive defence and he has to ask if i have one and therefore would it be worth allocating to small claims court. I wasnt about to be put off by what was a glaringly obvious attempt to get me to say game over, went for the unenforceable credit agreement, not the full agreement as what was provided was a poor scan that didnt include the full document and was barely legible. Threw in non production of default notice, termination notice and allocation notice. Restons not happy and claims they are avialble just that she didnt have them with her on the day, brwakign with protocol i chipped in that they've been properly requested and should of been produced therefore no reason not to do so. Outcome was their application was dismissed and an order for Substasive defence to be filed by 5th Jan, Restons by the 15th of Jan if they want to reply and allocation questionaires to be completed by early February. I will struggle with the substasive dfence in part due to the lack of documents, i suspect Restons if they do have them will wait for the defence to be issued and then produce them or whatever they want to pass off as the required material. They made a massive thing about costs, the judge wasnt having any of it and has reserved costs. So im going to be after some quite detailed help on this one please.
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