How to defend a claim (Loan RBOS)**WON** Notice of Discontinuance

[jools63]

Hi

I think possibly I received a Default Notice about 2 years ago when they took my overdraft away hence me coming to this arrangement to pay, but I couldn't swear to it.

I have accessed my credit file and it says Default as at November 2007 but absolutely definitely nothing from them recently except the letter from their solicitors followed by the claim.

[jools63]

I have taken them down and replaced them with one with no details on - thanks for pointing this out....

 

http://i231.photobucket.com/albums/ee304/jools63/agreement3.jpg

[pt2537]

ok so no default notice then,

 

right ok, leave it with me

 

all we can do at present is post a holding defence for now and await til the supply the documents that have been requested

 

regards

paul

[jools63]

Thanks Paul - you are a gem. I'll leave it with you......

[pt2537]

no problems jools, the time is we cant really do much as it stands because they are frustrating the process at the mo

 

i will post up a defence as soon as ive written it, it should be by tonight or tomorrow at some point

 

regards

paul

[jools63]

Thank you so very much - I couldn't sleep last night beacuse of this and I may well be ok tonight thanks to your kindness.

Jools

[pt2537]

Hi Jools, hopefully you can sleep at night now

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

Jools63 - 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.

 

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 answer

 

5.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.

 

6.The claimant responded on the xx/xx/2007 to my request for disclosure under the civil procedure rules stating they feel I have sufficient information and will not comply at this time. However since they have refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

 

7.It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the claimant has stated in the letter referred to in point 6 that “with regards to full disclosure this will be dealt with under CPR Rule 31 in due course if and when a defence is filed”. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me

 

8.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

 

9.The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 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

 

10.Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

11.The claimant is therefore put to strict proof that such a complaint document exists

 

12. 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. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

13.Notwithstanding point 12, 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)

 

14.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 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)

 

15.Without Disclosure of the relevant requested documentation I am unable to asses 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

 

16.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.

 

17.Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

18.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 should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

Statement of Truth

 

 

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

 

 

Signed …………………

 

Date

 

i am going to ask some others to give their views as i prefer to get a consensus of opinion first so hold fire on posting it just yet, but this is my suggested defence to their case as it stands

[pt2537]

Hi jools,

 

anything youre not sure of then please ask away

 

regards

paul

[jools63]

Hi Paul,

 

Gosh I feel all looked after thank you, crikey they won't be expecting that!!!!!!

I think understand where you're coming from with most points,I'm not sure that i can fill in Point 18 as the agreement is not dated....what would you suggest?

With a million thanks

Jools

[pt2537]

Hi Jools, wasnt teh agreement entered into around sept 2005??

 

then all you need to put is

 

 

18.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 or around September 2005 the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

that would suffice,

 

its just to stop them hiding behind the newer legislation as certain protections from the 1974 act have been diluted by the 2006 act

 

regards

paul

[jools63]

PS When I go to file the defence online I am a wee bit confused again...

 

Do I complete the "If you admit part of the amount claimed, complete the Admission and the Defence form" because the "If you dispute the whole claim or wish to make a claim (a counterclaim) against the claimant, complete the Defence form" section doesn't reply apply as I know I owe the money I just don't agree that i've defaulted and that this justifies a CCj resulting in a charge on my house or whatever they choose......

I just will find it impossible to say how much of the debt I admit...

Am I making sense?

 

Jools

[pt2537]

Hi Jools

 

yeah makes sense, what we are saying is that for them to have a right of action they must have followed certain lines

 

they must have an enforcable agreement

 

they must have issued a default notice compliant to the CCA 1974 and the regulations

 

Yes you admit that you owe the money, but without disclosure of the documents that you requested you can say how much you owe, nor can you asses if they have a legitimate right to take legal action

 

Now on the issue of the defence, you will probably need to file the defence in a paper form as MCOL only allows 8000 characters and this is bigger than they allow

at the moment we can say what you owe because they have refuse to supply you the docs, i hope im making sense

[jools63]

Ok - so I complete the "If you admit part of the amount claimed, complete the Admission and the Defence form" parts do I and say without full disclosure etc I cannot say how much is owed and refer to my defence?

If that's right then I'll send it Special Delivery at lunchtime......

[Curlyben]

Admit NOTHING until they can prove 100% exactly what it is you owe.

This is the function of the CPR information letter, which they have yet to comply with.

[jools63]

Ok fab - I'll tick the admit nothing box and get it sent over today.

I presume it's ok to use a blank copy of the defence form off the web as long I include all the ref/claim numbers? I ask as I filled it in when I first received it and now don't want to send it of course...

I can't thank you all enough......

 

Jools

[jools63]

Hello again - hope you had a relaxing Xmas and New Year.

 

On the final day left after filing my defence I received a one line reply from RBOS solicitors merely saying that they were continuing the claim and had written to the court to tell them this.

 

Still no proof from them, no documents or correspondence whatsover. What do you think will happen next?

Thanks

Jools

[pt2537]

Hi Jools,

 

ok pretty normal to be honest,

 

 

what you will receive is an allocation questionnaire either a N149 or N150

 

when you get the AQ or any correspondence from the court let us know

 

regards

paul

[jools63]

Hi Paul,

We have had some correspondence but none of it makes sense. I received a letter from RBOS solicitors yesterday. I quote:

 

" We write blah blah with regards to your defence and enclose the following: statement of account from 25/02/05 - 29/08/06 and statement of account from 12/07/96 - 01/11/06.

You will note the enclosures clearly show how your debt accrues and we therefore invite you to withdraw your defence.

With regards to the point you raise concerning POC, we confirm we issued proceedings throught the Northampton CC Bulk Centre in accordance with the Civil Procedure Rules associated Practice Directions particularly PD 7C, 1.4(4)

Please note if we do not hear from you in 14 days we will be making an application to the Court for Strike Out/Summary Judgement which will incur further costs that you will be liable for"

 

Well the "enclosures" were literally copies of my bank statements and that's all, no info at all on how I am supposed to have defaulted my on my current arrangment.

They seem to be saying that as I defaulted in that period 05-06 - which is true I was a couple of months behind hence this arrangment to pay which I have kept up since - that's what they're getting me on, not the fact that I have kept up to date since then.

What do I have to respond with in 14 days. i thought it was down to the Court to decide the next course of action?

 

Oh blimey

 

Jools

[pt2537]

Hi Jools

 

Please try not to worry, i am currently working on another case at the mo, i will try in the next few days to post up a letter to send the solicitors

 

suffice to say, im not surprised that tehy have asked you to withdraw your defence

 

after all if you did they would file for judgment

 

 

regards

paul

[jools63]

Thanks so much Paul - you're a such a kind hearted person. I hate not knowing what to do with this so I can't tell you what your support means.

 

I do want to fight this as I really don't think I have done anything to warrant this treatment. I will go to court if need be.

 

I look forward to hearing from you when you have time.

 

Best wishes

Jools

[jools63]

Paul,

 

Why are the solicitors putting pressure on me to respond to them directly?

I thought the whole point of passing it to court was so that we dealt with the courts from now on.....

Surely they can't just apply for judgement without someone else having an overview of this? Don't I have ever get a chance to put my side across or is it their way all the way?

 

Jools

 

PS I just looked at the bunch of stats again and they only go up to Nov 2006, so no record at all of any payments I've made since then ove rthe last year or so and including up to the present day. I'm staying up to date in case that helps at all......

 

Jools

[pt2537]

Hi Jools,

 

in my opinion, this is a typical scare tactic

 

i have been exceptionally busy with radio this morning and also dealing with a massive case at the moment which i cant say much about at present but it is not bank claims or credit related

 

i will draw up what i feel is suitable response to this letter,

 

the application for summary judgment is something they can make,but making and application and getting the judge to make that order are too different things

 

please dont worry, i will address the issues of failing to supply full statements etc in the letter

 

Regards

paul

[jools63]

Thanks - sorry to bother you!

[jools63]

Hi Paul,

Just thought I'd flag up that next Wed is my deadline to respond to RBOS sols before they apply for judgement. I know you're frantically busy but if you could give me an idea how to repsond, then I make sure it gets there in time.

Many thanks in advance

Jools

[pt2537]

jools, sincere apologies

 

i have a list of things to do, you are on that list but it doesnt seem to be getting any smaller:o

 

i will deal with your case this evening if thats ok with you, it will give me a chance to sit down reread what they have said and then compose a reply to them

 

regards

paul