Help needed im4347 Vs EGG/DLC**DISCONTINUED**

[pt2537]

Hi,

 

if the default notice which Egg Served you is made up of penalty charges it is possible in my opinion to have the default over turned on the authority of Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255 which set out that where a default notice contained an incorrect figure it is void and would be cancelled.

 

if this default notice figures are made up of penalty charges its fair to say the figures are wrong and therefore gives you sufficient grounds to challenge it in my opinion

 

also, have you requested a copy of the credit agreement and other documents which Egg are going to rely upon? you are entitled to this info and can request they supply it under the Civil Proceedure Rules

 

this would give you the opportunity to atleast buy you some time, the court if in agreement with this arguement would rule the default notice invalid and could end this action as the claimant would not be allowed to take legal action without first issuing a default notice under s87 CCA 1974

 

If you want any further help please let us know

 

Kind Regards

paul

[pt2537]

 

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Egg Plc.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

 

 

Heres the CPR letter, i have borrowed this one from tomterm8s thread,

[pt2537]

Hi IM

 

the key here is that the figure that you are required to pay to remedy the default contained in the Default Notice MUST be accurate. therefore if they have put 900 for example and it should have only been 850 the default notice is invalid and therefore they have not complied with the consumer credit act 1974 provisions and therefore are NOT entitled to take legal action as they are not allowed to enforce the debt through court until they issue a default notice

 

basically what i am saying is if the figure they are quoting in the default notice is made up of late payment charges even if its only one it gives grounds to challenge the validity of the notice

 

Regards

paul

[pt2537]

Hi,

 

are you ok preparing your defence to this claim?

 

if you need any help let us know and im sure we can put up a good defence for you

 

Regards

paul

[pt2537]

Hi, right you need to acknowledge service, the best way to do this is through Mcol ( Money claim online) .it should tell you on the claim form you were sent how to do that

 

now acknowledging service and stating your intention to defend will give you an extra 14 days to file your defence

 

now then, have they supplied you a copy of your credit agreement in response to your cca request?

 

have you requested Disclosure under the CPR?

 

i can help you writing the defence but its your decision ultimatley if you want to defend, i tell everyone the same at the end of the day, you will be the one attending court not me.

 

 

 

Regards

 

paul

[pt2537]

can you also post the full particulars of claim

 

appologies if you have already done so but i just wanted to make sure we have the full facts of what they have pleaded in their claim

[pt2537]

right ok, well not really sufficiently particularized pursuant to the CPR part 16 for starters

 

well, its up to you with regards to defending, as things stand now at this moment in time. their case is fairly weak, however, if they produce a valid agreement compliant with the CCA 1974 this could change

 

however, i am of the opinion that you can only defend what you have been given

 

the defence will be a basic holding defence that we can use,should you decide your going to defend,based on the fact that they have not disclosed the requested info and you cannot prepare a defence without the documents youve asked for

 

the main thing is not to worry too much at this stage

 

regards

paul

[pt2537]

Hi Matt,

 

just seen the thread,im having a think on whats best here,

 

i have a defence on the pc that will cover this so all it will need is an amendment and we are ready to go

 

 

 

Regards

paul

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

 

 

• Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

• The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

• The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as 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 account number of the agreement, 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 xx/xx/2007 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 xx/xx/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

 

11.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

 

 

 

12.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 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

 

13.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

 

14.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

 

15.Notwithstanding point 13, 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)

 

16.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

 

 

17.Without Disclosure of the relevant requested documentation I am unable to assess 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

 

18.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.

 

19.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

 

20.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.

 

 

21.I respectfully ask the permission of the court to amend this defence when the claimant provides the above documents

 

 

 

:

 

 

 

 

 

 

Statement of Truth

 

 

I XXXXXXXX, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

 

 

 

here my suggestion for the defence, it will need to be amended to suit

 

regards

paul

[pt2537]

Hi IM,

 

firstly the formatting went a little haywire the first 3 points should have been numbers,1,2 & 3 dont know what went wrong there but you need to correct them

 

 

 

with regards the docs, i would hang on to the docs at his point, if they deny the statement in your defence then you can prove them wrong in court;). thats my initial thoughts anyway,

 

 

on second thoughts though, it may be an idea to send copies of the documents as since we are asking for the claim to be struck out it may serve a purpose to send copies of them to the court with the defence.

 

i will ask some others for their opinions as to what hey think is best

 

 

 

regards

paul

[pt2537]

Cheers mate:)

[pt2537]

Hi IM

 

if the N1 form has a password for Mcol then you can do it through there

 

 

it should say on there about using Mcol

[pt2537]

Hi IM

 

Just had a look, standard letter from the court

 

so its just a waiting game now, let us know what happens next, my gut feeling will be that you will receive an Allocation Questionnaire either a N150 or N149 if you dont hear from the claimants,

 

they may look at your defence and decide not to continue but its a waiting game now

[pt2537]

huh?

 

So what the hell happened to the previous claim,? is it still live?

[pt2537]

This second claim becomes an abuse of the process and ought to be struck out.

 

The authority for this is Buckland v Palmer [1984] 1 WLR 1109