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[Movingon]

OK - the hearing will be transferred to your local Court after you return the "Allocation Questionnaire". So no worries about that. Plus, if you win you can probably counter-claim for your (reasonable) travelling expenses anyway; have a statement ready for the Court in case you need it. Regarding filing the Defence, just send it Spec Deliv on the day before your deadline for Defence. (See below)

 

Your CPR Pt 18 request asks for copies of any Default Notice served; you can state that you did not receive it however you already have a copy of the one you SAY you received and will be presenting that at Court.

 

EXAMPLE: Claim submitted on day 1, issued on Day 3. Acknowledgement of Service required within 14 days - i.e. by Day 17. If your Ack of Serv states you will defend (yours did) you have a FURTHER 14 days from Day 17 - i.e. until Day 31, to submit your defence. In real life if you have the full 28 days, it's from the date on the "Acknowledgement of Service" sent to you by the Court - the "Issue Date". In ALL cases, you can phone the court and ask what your deadline is - they are extremely helpful, as long as you're not asking about points of Law.

[Viano]

Tom,

 

Will the defence be that that Paul has posted, or a modification of that?

 

Viano

[Movingon]

If they don't respond to your "more info", use the one that Paul posted (or his final version anyway once he's happy)... if they do respond we'll have to revisit the Defence in total anyway.

[Viano]

Thanks Tom, I'll hold fire until the 27th then.

 

Viano

[pt2537]

Hi Viano,

 

Yeah i would hold fire until the last minute

 

i would check to make sure the courts will be open on the day you intend to file if youre taking it in by hand.

 

i have one small amendment to make to the defence and then it should be good to go,

 

in fact if it came down to it you could file what is posted and we could always make up the other bits in the witness statements and Skellie arguements

 

 

regards

paul

[Viano]

Paul,

 

Do I wait for the Request for Info under part 18 of the CPR, and will they let me know the date of the hearing?

 

Viano

[Viano]

What are the Skellie arguements?

 

Viano

[pt2537]

hi Viano,

 

what will happen is that when you file the defence the other side will be notified that you have filed a defence and will be up to them to decide if they wish to discontinue or proceed

 

if they carry on you will be sent an allocation questionnaire to fill in,it will either be a N149 or N150 depending, so when we get to this stage let us know

[pt2537]

oh, Skeleton Arguements

 

basic outline of your arguements for the judge

[Viano]

Thanks again chaps, for all your help.

Viano

[pt2537]

youre welcome Viano

[Viano]

Paul,

 

Being a little more clear headed now I have just re-read the defence, just a couple of points vis, in the conclusion 27 'I am not unable to prepare' and 30 is this the date of the signing of the application form ?

 

Viano

[pt2537]

Hi Viano,

yes typo on point 27, i have had little time to get back and look at it to be honest

 

point 30, you could place the year in which the agreement started if you like,

[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 continues

 

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 17, 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 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 addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

29. 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.

 

30. 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.

 

31. 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

 

 

 

 

Right then

 

ive included a section asking the court to use its powers under s142 to declare the agreement unenforcable,

 

this probably wont happen at this stage as many district judges i have come across wont do this at the defence stage but it is worth asking

 

regards

 

paul

[Movingon]

Good defence! I may even use that myself LOL. Wonder if Viano got it in time?

[Viano]

Hi Paul, Tom et al,

 

A good New Year to you all.

 

I managed to get a few days away, and have only just got back.

 

I hav'nt heard anything from the opposition yet, that is no more paperwork or anything, nothing from the court either, do I send the defence off now or wait as suggested until the last moment?

 

Viano

[Newborn]

Subscribing, have almost identical app form.

 

Newborn

[The GodMother]

Get it in ASAP. As that will look good. I think thecourts open again tomorrow or thursday so it will be a good idea to sort it over the next couple of days and file it then.

 

I would advise that you check when the courts open as soon as you can.

 

Her Majesty's Courts Service - Home

 

It might tell you on this website.

 

Chrissi

[Newborn]

Don't know if it helps but I have checked my identical but even more unreadable form and there is I believe, some missing info at the bottom of your app form. So it can't be a true copy, can it?

 

Newborn

[Viano]

Hi Newborn,

 

Are the missing bits relevant?

 

Viano

[pt2537]

Hi Viano

 

i dont think you have anything to worry about, the defence we put together was pretty exhaustive

 

have you sent it to the court yet? if not id get it in the post asap to the court if you can

 

the last thing you want is to miss the deadline

 

Regards

paul

[Viano]

Hi Paul,

 

Thanks am doing it now, do I post it recorded or special delivery?

 

Viano

[pt2537]

Hi Viano,

 

have a proof read of it before you send it just to make sure there are no errors or no bits that you havent added your personal details into where they are xxxxxxx out

 

 

then send it special next day delivery, it costs a little more but you need it to be guaranteed to get there

 

regards

 

 

paul

[Viano]

Paul,

 

Should I send a CCA request to Moorcroft as a precaution?

 

Viano

[pt2537]

yeah it may be worth sending them a CCA request, see what they come up with,

 

we know it wont be compliant now dont we;)

 

sorry for the delay in getting back to you, i have had some personal stuff to deal with