LBA from Optima Leagal Services*WON* DISCONTINUED BY CONSENT*****

[Viano]

Particulars of Claim:

The Claimant s claim is in respect of a credit agreement regulated by the Consumer Credit Act 1974 whereby the Claimant provided the Defendant with a credit card and in return the Defendant agreed to pay at least the minimum payment given in the statement. A default notice was served on the Defendant on 25/09/07. The Defendant has failed to comply with this. The Claimant s claim of £x,xxx.xx is owed plus accrued interest as at 25/09/2007. Demand for payment has been made, however the sum remains outstanding.

 

Yes the claim is stamped Northampton County Court and issue date is 11 Dec 2007.

 

Do I send the templated letter forthwith?

[pt2537]

Thanks Viano

 

Yes send the letter , amend it to suit and get it in Special delivery ASAP

 

Right the particulars are pretty standard and we can present an argument to them without too much effort

 

dont worry, you need to file an acknowledgement of service and state your intention to defend (assuming that is your intention of course)

 

they have sent a non compliant agreement so it is a valid basis for a defence to this action

 

 

any questions?

regards

paul

[Edz11]

Yes. But make sure it is headed "Request for information under Part 18 of the Civil Procedure Rules"

[Viano]

Thanks Paul for your rapid reply.

Yes I am going to defend.

I will probably have load of questions-when I think of them!

Edz11 thanks I will head the letter as you suggest.

 

Viano

[pt2537]

Hi Viano,

 

the thing to remember here is desipte the fact they have sent you a CR@P application form, they have now shot themselves even more in the foot because the CPR part 16 and Practice Direction 16 requires that the particularise the claim correctly and they attach the documents they are relying upon especially if they are written docs and they form the basis of the claim which they do in this case

 

we can answer their claim with very little difficulty

 

 

can i ask who has been put in the box as the claimant?

 

regards

 

paul

[Viano]

Paul,

Claimamt:

 

Barclays Bank PLC

1 Churchill Place

London

E14 5HP

 

By the by, I have also requested charges back via the FSA-months ago!

Viano

[Viano]

Paul,

Just read the claim form again and it states " The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement"!!!!!!

 

signed Optima Legal Services Ltd (typed as they can't write)

Claimant's Solicitor

[pt2537]

Hi Viano

 

thats fine, no worries, just wanted to check

 

 

 

Regards

paul

[Viano]

PT, Congats on the results.

The letter to their sols will be there before 1300hrs today.

I am sendig back the achknowledgement today, do I intend to: defend all of this claim, part of this claim or contest jurisdition?

Viano

[pt2537]

PT, Congats on the results. Thanks Viano

The letter to their sols will be there before 1300hrs today.Excellent keep the reciept very safe

I am sendig back the achknowledgement today, do I intend to: defend all of this claim, part of this claim or contest jurisdition? at this stage, all you can do is defend all of the claim , you are not contesting the courts jurisdiction so don't worry, that is if you believe the court does not or should not hear the case

Viano

 

regards

paul:)

[Viano]

Thanks Paul.

Viano

[Movingon]

What a read... just subscribing in case I can be of use.

[Viano]

I hope we don't need you, but hang in there. There WILL be more

Viano

[pt2537]

Hi Viano,

 

just wanted to say that if i don't check in for a while and it gets close to the time when your defence is due give me a shout by pm if i havent posted something for you to look over as i do often get caught up in many other cases

 

 

regards

 

paul

[Viano]

Will do, and many thanks again.

Viano

[pt2537]

Hi Viano,

 

has Barclaycard ever issued you with a Default notice?

 

if they have can you post a copy please?

[Viano]

Paul,

No but Mercers have citing that they are agents for Barclays Bank PLC trading as Barclaycard.

I will post a copy ASAP

Viano

[pt2537]

Paul,

No but Mercers have citing that they are agents for Barclays Bank PLC trading as Barclaycard.

I will post a copy ASAP

Viano

 

really, so mercers are involved too eh?

 

wonderful

 

ok, if youve not had a default notice thats even better

[Viano]

Paul,

I have tryed to post the default notice, but the upload failed twice!

Help please, I am a dawk at this.

Viano

[pt2537]

Hi Viano, if you want, you can email it to me and i will take a look,

 

my email addy is in my signature

[pt2537]

Hi Viano,

 

when you wrote to barclay card on the 27 september about the agreement they sent, did they reply at all?

[Viano]

Yes,

Letter dated 8/11/07, looks like as standard letter quoting

"As far as our records show the Bank has complied with your request under Section 78 of the Consumer Credit Act 1974 in your letter dated 7 August 2007 when we enclosed the relevant documentation as they were then when you originally opened both your Barclaycard and masterCard Accounts.

 

At the time you applied for your credit cards the executed agreement was incorperated into the application form. You signed a credit agreement in the prescribed form which embodied the full tems and conditions of your credit agreement in accordance with the terms of section 61 of the Act. The prescribed full terms and conditions of your agreement were set out on the reverse of or otherwise incorperated into the application form and were specifically referred to in the credit agreement section which contains your signature.

 

In the case of the Creditor or Debtor signature box or signatures, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 state that there is no requirement for the copy of an Executed Agreement to contain any signature box, any date and signature.

 

The document forwarded to you is in the prescribed format under the 1983 Regulations prior to the 1 June 2005

 

Having complied with your request, both accuonts are enforceable in the circumstances therefore our collection and recovery policies are applicable to your outstanding debts.

 

Your concerns under the Data Protection Act Have been referred and you should by now have received the relevant respond from my colleagues regarding this matter."

 

Viano

[pt2537]

Hi Viano

 

ive just read the email you sent,

 

Mate, that has got to be one of the worst Default notices i have ever seen, it does not comply with the law!!!!!

 

Game over, im in the process of writing a defence to this claim which will put their heads well and truly up their A*$es so thats really game over

 

obviously any suggested defence i post it will be entirely up to you if you want to use if or not

 

regards

paul

[Viano]

Hi PT,

Any comments on their answer to my letter of 27/09/07?

Viano

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

Viano- Defendant

 

 

Defence

 

 

 

1. 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.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. 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 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 as laid out in Practice Direction 16. Paragraph 7.3.

 

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

The Credit Agreement

5. On the xx/xx/2007 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974. The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

6. On the xx/xx/2007 in response to my request I received a copy of an application form from the claimant (Attached to this defence marked ST1) on inspection I found the form supplied was very hard to read and therefore did not comply with regulation 2(1) of Statutory instrument

1983/1557 which states

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

.

 

7. Therefore it is averred that the claimant has failed to discharge their obligations under section 78(1) of the Consumer Credit Act 1974 and as a result are not entitled by way of section 78 (6) of the Consumer Credit Act 1974 to enforce this agreement while their non compliance continue

 

8. Notwithstanding point 7, it is noted that the form claimed to be a valid credit agreement (exhibit ST1) does not contain any prescribed terms as laid out in Statutory instrument

1983/1553 (

Consumer Credit (Agreements) Regulations 1983)

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. The terms laid out in point 9 terms do not appear to be contained within the agreement

Document Headed Conditions of Use

 

11. In addition to the Application form supplied by the claimant in response to my request made on xx/xx/2007 there was a separate sheet entitled Conditions of use. There are certain required terms within this document, however this document does not appear to be linked to the Application form. In addition I consider this does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as the Regulation say that all the schedule one information should be contained "within the agreement" not on a separate document headed Terms and Conditions or in this case Conditions of Use

 

12. I suggest that this document shows no relation to the application provided and there is no clear link between the application form (Exhibit ST1) and the Conditions of Use (Exhibit ST2) therefore I put the claimant to strict proof that these Conditions of Use actually relate to this application form

 

13. On the 27/09/2007 I wrote to Barclay card outlining my concerns with regards to the legibility of this application form and informing them that they had failed to comply with the requirements of the Consumer Credit Act 1974.

 

14. On 08/11/2007 I received a reply from the claimant see attached marked (Exhibit ST3). The claimant failed to address my concerns and insisted that they had complied with the requirements of the Consumer Credit Act 1974

Build up to proceedings

 

15. The claimant’s representative’s optima wrote to me on the xx/xx/2007 informing me that they would be instigating proceedings in x days. They did this even though the account was dispute and it had been drawn to the attention of the Claimant that this was the case. Additionally the claimants response to my letter disputing the account and the credit agreement was received after the letter before action, thus giving me little chance to attempt to resolve this dispute before the claimant instigated proceedings

 

16. I believe this in itself is unreasonable and not in accordance with pre action protocols laid down in the Civil Procedure Rules in that the claimant has failed to take reasonable steps to resolve this dispute before instigating litigation

 

Enforcement of the Agreement

17. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 9 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

 

18. With regards to the Authority cited in point 11, 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.”

Failure to enclose documents relied upon in the Particulars of Claim

 

19. Further to the case, on xx/xx/2007 I requested 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.

 

20. 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, especially given that I am Litigant in Person

 

 

21. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

The Default Notice

 

22. On xx/xx/2007 I received a letter from Mercers Debt collection Limited who claimed to be representing Barclaycard. The letter was headed Default Notice served under section 87(1) Consumer Credit act 1974. The letter cannot be a valid default notice as it fails to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with S87 (1) Consumer Credit Act 1974

 

23. 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 termination of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

24. Notwithstanding the Fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default has been served upon me and there fore the claimant is precluded from taking such action until a Default Notice is served in the correct form containing the correct information laid out by SI 1983/1561

 

 

25. Consequently I put the claimant to strict proof that a default notice in the prescribed form and content was served.

Conclusion

 

 

26. The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information. In addition I believe the claimant has acted unreasonably in bringing this action and further believe the claimants action should be viewed as vexatious. It is requested that the court strike out this claim as there is no prospect of success in view of the matters pleaded above

 

27. Further more, without full disclosure I am not unable to prepare a defence to the documents, which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

 

28. 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.

 

29. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

30. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

 

 

Hi Viano,

 

This is very much a rough draft of a defence, so its not the finished article. however, i am posting it for opinions and thoughts from eveyone

 

 

so please dont send it to the court yet:)

 

 

regards

paul