sainsbury bank/CCP claimform - old consumer credit agreement **WON Discontinued**

[caro]

Tom, I must admit that I missed any criticism of your actions, and you are more than welcome to add your perfectly valid points.

 

I think it is very easy for legally minded bods to get involved in interpreting this and that, trying various strategies etc. Everyone must do what is right for them, and be comfortable that they understand what they are doing in court.

 

Regrettably most people in Rosie's situation probably have a very limited understanding of the legal issues, and if she's anything like me, doesn't have the money for counter claims and legal advice.

 

I know I keep saying it, but that is the beauty of CAG. It's totally free, and as long as you post all the information you have on your thread, many people with similar experiences will do their best to help you.

 

As you say, every case is different, so every persons action will be different and they must do what is right for them, without putting themselves at risk of losing a lot of money - unless of course they can afford the risk and understand fully what they are doing.

 

Put it like this. My knowledge of the law is pretty much limited to the little I've managed to glean from CAG. I would never issue a claim or counterclaim if I didn't know that I could argue my points strongly in court, or afford good, qualified legal representation to do it for me. I'm sure we know that most people who come to CAG can't afford such luxuries.

 

By the way Rosie, I hope that I don't sound patronising, and if you are up for the risk of a counterclaim I wish you every success with it.

[rosierose]

Wow! Thanks for all that advice, everyone. It is very appreciated.

 

I will leave the door open for a counterclaim, but will not go there just yet. I need to undertake some serious research before following that path.

 

I'll post up the defence a bit later

 

Thanks

 

Rosie

[caro]

Pleasure Rosie. We'll all help all we can.

[pt2537]

Hi Rosierose.

 

have fun with the reading:) if you want to look at any of the cases refered to inthe documents i sent you let me know and i will hop onto the databases and get em for you.

 

it is a big decision to make with regards to the counter claim and its very easy for me to sit here in southampton and say yeah go for it but you really need to go into it with both eyes open.

 

as i said from the start, my initial thoughts were to get their claim thrown out for failing to comply with the law and for being vexatious. you have more than enough to get their case thrown out and have a total defence to their action as previously stated

 

ultimatley its your decision, but if i were in your position, i would look to follow the K.I.S.S approach. (Keep It So Simple)

 

there are lots of us on here that will help you with anything you need

 

Good Luck

 

 

Regards

 

Paul

[rosierose]

One question... by asking for the removal of the default marker am I, in essence, making a CC?

[rosierose]

Here's a stab at it (based on Tomterm's).

DEFENCE

 

Except where otherwise mentioned in this defence, the defendant neither admits nor denies any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

I am embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

The claimants’ particulars of claims disclose insufficient legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is inadequately particularised and does not comply or even seem to 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 other matters necessary to substantiate the claimant’s claim.

b) 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.

 

Consequently, the defendant denies all allegations on the particulars of claim and does not know what case is to be met.

 

Further to the case, on 30.10.2007 the defendant requested the disclosure of information vital to this case from the claimant, in respect of the alleged debt the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and any default or termination notices, a transcript of all telephone calls made by the claimant or his agents to the defendant’s home, list of transactions, including charges, fees, interest, alleged repayments by the defendant. Also any other documents the Claimant seeks to rely on, including any default notice, and a list of charges applied to the account. I therefore respectfully ask that the court grant permission to amend this defence and counterclaim when I have received the necessary information.

 

With respect to the claim, it is denied that the defendant is liable to the claimant as stated in the claim, or at all:

1. A copy of the credit agreement was requested by the defendant under the auspices of section 78 of the Consumer Credit Act 1974 in October 2006. The agreement has yet to be produced by the claimant in the prescribed manner. Instead, the claimant has produced a largely illegible document, purportedly an application form. The document lacks any of the terms prescribed by the Act and detailed in The Consumer Credit (Agreements) Regulations 1983 (SI-1553). By virtue of section 60, 61 & 127 of the Act this lack of prescribed terms renders the agreement irredeemably unenforceable. In the absence of an enforceable agreement, the defendant denies that there has been any failure to make payment in accordance with the terms of such a contract.

2. The Claimant has failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

3. Having failed to give sight of an agreement in the prescribed manner within the period prescribed by section 77 of the Act and Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1569), the claimant has placed himself in default of the request for a copy agreement made by the defendant in October 2006, committing an offence as detailed in that section. The defendant avers that the claimant has no right to enforce an agreement whilst in default.

 

In order to enforce early payment the claimant was bound by section 88 of the Consumer Credit Act 1974 to send a properly formatted Default Notice. It is denied that any Default Notice in the prescribed format was ever received. In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

 

The defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit. The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

b) Moreover a proportion of the charges and interest levied thereon were applied whilst the claimant was in default of the request made by the defendant in October 2006 in contravention of section 78 of the Consumer Credit Act 1974. These charges and interest are further reason that the total amount declared in the default notice is incorrect.

d) The Default Notice received on xx.xx.xxxx gives the prescribed period for action incorrectly as 24hrs in contravention of section 88 of the Act and the Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (SI 1561), voiding said document.

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges. I put the claimant to strict proof that any default notice sent to the defendant 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. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co [1999] 1 WLR 263) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but provide the defendant with a valid counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119). Such being the case the defendant requests that the court order the claimant to remove the default marker and any other adverse entries registered by the claimant at credit reference agencies.

 

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, having failed to investigate a dispute as required by the OFT Debt collection Guidelines and having badgered the defendant with excessive telephone calls whilst in default, I believe the Claimant’s conduct amounts to breachs of both section 40 of The Administration of Justice Act 1970 and the Protection from Harassment Act 1997. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

[caro]

One question... by asking for the removal of the default marker am I, in essence, making a CC?

 

A counter claim is quite simply another claim - another case, although it relates to the original claim brought against you. I haven't read your defence yet, but if you put in your defence that the default is unfair, unlawful or however it should be put, and explain why you believe that, and more importantly the legal reasons for it, there is no reason to do a counterclaim.

 

At the hearing the judge would look at the case being brought against you, and your defence, and if he agrees with your defence you would win. He may agree with all or part of your defence, and if he agrees that you should not have had the default he can order it to be removed.

 

If you don't mention the default in your defence, bearing in mind that it has to be a statement of truth, you could win your case but with no mention of the default, the judge may not think to remove it. Why leave it out? What purpose will it serve? It is relevant to the claim against you.

 

As I have said previously, it is much harder to remove defaults in separate cases, so if you ask for the default using a counterclaim in my opinion you may not be so successful.

[tomterm8]

Hm... I admit, I haven't read the defence, but it seems a little early to write one yet... have you send the disclosure letter and credit agreement request yet?

 

Also, have you acknowledged service, and when is the defence actually due?

[rosierose]

Hm... I admit, I haven't read the defence, but it seems a little early to write one yet... have you send the disclosure letter and credit agreement request yet?

 

Also, have you acknowledged service, and when is the defence actually due?

 

Hello

 

Acknowledgement was filed at the end of last month - same time as the disclosure letter. The defence is due Mon 12th.

[tomterm8]

Oh. In that case, we need a copy of the particulars of claim.

 

Have they sent you a copy of the credit agreement yet?

[rosierose]

have a quick look at:

http://www.consumeractiongroup.co.uk/forum/general-debt/119530-what-would-you-do-2.html#post1222911

for a quick timeline of events

 

The POC are: £xxxx.xx. Pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hitherto.

Agreement dated xxth of xx xxxx

[pt2537]

Hi tom,

 

The pocs are in post 29

 

they are very informative:D

 

Regards

 

paul

[pt2537]

ah ha. rosierose posted at the same time, oh well forget my post then

[rosierose]

[tomterm8]

Hm. I've got to go off till tonight, but my instincts say we should customise the defence quite heavily in this case.

[caro]

Well they certainly do seem to be embarassed, and I'm amazed that the court accepted them like that, if the full particulars were not attached. If it weren't for the default I'd suggest applying for them to be struck out, but I think it would be to your benefit to defend it at a hearing to show what jokers these people are and clear the default if possible.

[tomterm8]

Here's a little draft defence I have come up with. You need to check all the facts. it's quite lengthy;)

 

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.

 

BACKGROUND EVENTS RELATING TO THIS CASE.

 

Please note, the dates below are approximate, and are my recollection of events leading up to this case.

 

Oct 06 – I requested copies of statements to start a claim to recover charges. I also requested a copy of the credit agreement

 

Nov 06 – I receive statements. These statements show about 300 in charges. Receive letter saying agreement will sent under separate cover. Write to the Claimant explaining my legal right to this information and informing them that until such time as I get sight of agreement payment will be withheld in accordance with s77 of the Consumer Credit Act 1974.

 

The claimant started calling every day, up to tens times a day, 7 days a week. Practically the only day they did not call me between November and mid March is Xmas day.

 

Dec 06 - write to ccp concerning telephone harassment – and asking them to contact me only in writing. This letter was ignored.

 

Jan 07 - Report matter to trading Standards. Trading Standards write to the claimant telling them to cease harassment and that I am correct in withholding payment. TS letter asks for compensation for harassment mentioning the protection From Harassmant Act and Administration of Justice act. The claimant ignored this letter. Trading Standards also asked the claimant to stop publishing data with credit reference agencies whilst in default. The claimant write and say that the agreement was sent in Nov - I put them to proof in letter, which was they have failed to provide. I reported the claimant to the Office of fair Trading.

 

Feb 07 – Trading Standards pass matter to enforcement section. They also write to the claimant. The claimant again ignored this letter.

 

March 07 – Trading Standards finally make contact - Telephone harassment stops. Am informed by TS that they will start an investigation for breaches of s40 of AJA'70.

 

April 07 - Poorly scanned copy application form sent to TS. No prescribed terms included in the agreement. The agreement was mostly illegible, conflicting with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. At this time, approximately 6 months had passed between my lawful request and the claimant providing this information, and the Claimant was in criminal default of the legal requirements of the Consumer Credit Act 1974 s77-79.

 

May 07 - I write to inform claimant that agreement is irredeemably unenforceable and make S.A.R - (Subject Access Request) under the Data protection Act 1998 for call logs – the S.A.R - (Subject Access Request) was ignored. Harassment begins again, though only 3-4 calls a day and not every day. TS continues investigation.

 

June 07 - Default notice received. The default notice was not valid as it includes charges etc. the default notice was dated 5 days before receipt - giving 24hrs notice to correct the default. However, I believe the prescribed periods changed to 14 days under the consumer credit act 2006 s14, which came into force via The Consumer Credit Act 2006 (Commencement No. 1) Order 2006 (No. 1508 (C. 52)) on 1st October 2006. it is my belief that the default notice was invalid in any event, and reporting a default or engaging in legal action is unlawful under s87(1) of the consumer credit act 1974.

 

July & August 07 – I am Abroad. Copy statements sent again - presumably in response to the S.A.R - (Subject Access Request) for the call logs.

 

Sept 07 - TS finally back off despite having CCA and SI-1553 explained to them though they promise to act as a witness should need arise. Refusing to send actual copies of correspondence, quoting Data Protection Act, TS promise to send precis of all communication between themselves and creditor. Reminder sent to ccp re call log S.A.R - (Subject Access Request).

 

October 07 - Court claim issued. I request disclosure of information under CPR.

 

 

DIFFICULTIES ANSWERING STATEMENT OF CASE

 

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 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 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.

 

Consequently, I do not know what case I have to meet.

 

Further to the case On DATE I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant has failed to produce any of the information requested. The claimant has not provided any further information.

 

DEFENCE TO THEIR CLAIMS

 

With respect to the claim, it is denied that I am liable to the claimant as stated in the claim, or at all:

 

 

 

Having requested a copy of the credit agreement, which has (thus far) not been produced by the claimant I put the claimant to strict proof that such a document exists, in all respects compliant with the consumer credit 1974. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

 

The Claimant having failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

It is denied that any valid 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.

 

In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges amounting to approximately 300 before interest, to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to during the period the account was active was valid and lawful. I aver that any default notice sent would have included these charges. I further put the Claimant to strict proof that the collection charge referenced on the Claim form is valid and lawful.

 

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.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 ) 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.

 

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, in the absence of a credit agreement complying in all respect with s127(3) of the consumer credit act 1974 the court is precluded from enforcing the debt. These requirements remain through savings set out in schedule 3, s11 of the Consumer Credit Act 2006.

 

I ask that in view of these facts, the court considers whether the behaviour of the claimant has been compliant with the overriding objective set out in the Civil Procedure Rules.

[pt2537]

Hi Tom

 

truely excellent defence.

 

i just noticed the reference to woodchester and swain

 

just a thought but wouldnt it be better to use to full case citation for this , either Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 or Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255

its just if the DJ is not familiar with the case he can look it up on the citation

Regards

paul

[shane5408]

nicely done tom:D

[shane5408]

Paul, you've turned pink!!! Congrats mate

[pt2537]

thanks shane

[tomterm8]

either Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 or Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255

 

 

 

Regards

paul

 

Hi Paul... yeah, i've changed the reference. TBH, i wasn't sure whether to include this case or not, since failure to include the proper prescribed period explicitly violates s87(1), and so Woodchester is not strictly necessary.

[pt2537]

Hi Tom , yeah , that case is ideal where a default has been issued but contains incorrect figures

 

i cant remember but was a default issued on this account ? if it was i would have thought it would be a persuasive authority, especially given the unreasonable behaviour of the Claimant and the fact that they have failed ot comply with the CCA and have added charges while being in default of the CCA request which would in theory mean the figures could be wrong

 

that was my thoughts anyway

 

Regards

paul

[caro]

I believe there was an improperly executed default.

[mammyslad]

Hello Rosierose,

Hope you have got everything together for Monday.

Best Wishes and Good Luck.

john

PS.( I have been following this thread)