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

[pt2537]

Hi Paul - No nothing else at all unfortunately. In light of them not responding in time in the past it would have been good if there was some reference to what would happen if they didn't do this by the 28th but no....

 

The ironic thing is that I have received an inheritance so I could settle if need be. The only way I will do that though is if they repair my credit file. I have a default on there which is inaccurate becuase they never served me with one plus they had no grounds to do so anyway. Getting something put on my file to rectify this is more important than anything.

 

Cheers

Jools

Ok well lets wait and see what they decide to do, they should file a fully particularised claim setting out the case clearly concisely and with supporting documents;) so we will then get the chance to look at the documents and their statement of case and see where we go from there

 

keep us posted when you hear anything

[goorooji]

Excellent posts, very interesting, i wonder if someone could have a look at my thread,

 

Help with Court summons from Restons

 

against Restons/HFC, i have a deadline to defend till the 27th March.

 

Any help much appretiated.

 

Goorooji

[jools63]

Hi Paul,

I didn't realise you were ill - I hope you are feeling a lot better.

 

I have had some responses but have a very tight deadline, this Friday (16th) to respond to the Court. Help!!!!!

 

RBOS sols did respond to the order of the 25th Feb to file full POC by the 28th March but I only received that this weekend as I moved out of the property they keep writing to over a year ago. It was only because the tenants moved out that I went over there to check on the place and found a file from them. Surely that's good enough reason to buy me more time? I have told Shoosmiths at least 4 times now that I have moved but to no avail.

I still disagree with everything they say but that's by the by. It means the judge has now ordered to me to serve a defence by the 16th May which is going to be tricky. I have scanned their counterclaim and uploaded it with my comments most of which you're aware of anyway.

 

From reading that it looks like I haven't made any payments when in fact I made a payment every month from Feb 2006 until Jan 2008 after they issued the original default. Even up til then I had only missed two payments since the loan was taken out back in Feb 2005. I still maintain that I wasn't in arrears when they served me with this last November. They seem to be stuck in 2006 and haven't acknowledged any payment history since then which I say forms the basis of my claim. Plus if they hadn't withdrawn my overdraft overnight without telling me, no letter or phone call at all, then I could of had time to get my house in order and avoid this anyway.

 

Also, is it relevant that in Section 4 they admit they can't find a copy of the loan agreement?

 

I have also received a Court date of the 1st July which is two weeks away from me having a caesarean for twins. I know I will not physically be able to attend that for a start beacuse I have to see my consultant on a weekly basis and he only does Tuesday appointments anyway. Plus I'm sure he will agree I should be avoiding as much stress as possible.

 

I could of course settle this now and pay in full but as they have ruined my credit file now by putting on a mythical default notice last November (which I still have not seen) I think there might be mileage in asking for a short settlement, what do you think?

 

There's a lot of info here I hope you get a chance to look at all of the issues Paul as I'm not sure which bit I should be concentrating on first.

 

Many thanks as ever - Jools

[jools63]

Hi again Paul,

 

Their counterclaim is uploaded here:

 

http://i231.photobucket.com/albums/ee304/jools63/img001.jpg

 

Cheers

 

Jools

[pt2537]

Hi jools, just looked at all the documents and i have to say they really are clueless, they have no copy of the agreement, it is game over plain and simple

 

 

i will get my defence writing head on and see what i can come up with

[pt2537]

Right

 

with regards to the time of the hearing , i suggest that you get in contact with the court and advise them of this, it may be hte case that we need to send a letter in as well to the court and the solicitors asking for them to take this into account

[jools63]

Ok Paul - will do. Shall I just say I will be unable to attend because of these circumstances and leave it to them to come up with a solution or shall I wait and send it in with in with the defence?

 

Cheers

Jools

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

 

2. This defence is made pursuant to the order of District Judge XXXX and is to replace the original defence submitted on xx/xx/2008 in its entirety

 

3. The claimants new Amended particulars of claim are still not in full compliance with the Civil Procedure Rules in particular practice direction 16 Para 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1)

A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2)

Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

 

4. The claimant cites at point 4 of the particulars that this claim is based upon a written loan agreement between parties, yet the claimant has failed to provide a copy of the contract or any terms and conditions of the agreement between parties as required under the civil procedure rules

 

 

5. On xx/xx/2007 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit Jools1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

6. The claimant failed to supply the requested information and refused to comply citing that they believed that I held sufficient information to reply to the claim. The defendant denies this was the case and further cites the fact that the court ordered that the claimant re submit a fully particularised set of particulars of claim

 

7. After giving full consideration to the claimants revised particulars of claim, without production of the written agreement, which the claimant cites that I have allegedly breached, I am unable to admit that I am indebted to the claimant and further more am unable to assess if the contract which the claimant claims to be reliant upon is legally enforceable or is properly executed as required by the Consumer credit Act 1974. Consequently, since the claimants case is still substantially flawed and by the claimants own admission they do not have the written document I deny that I am indebted to the claimant and place the claimant to strict proof that the debt is valid and further more legally enforceable under the Consumer Credit Act 1974

 

 

Document Retention and the claimants failures

 

 

8. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 77 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

9. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

10. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

11. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

12. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

13. Therefore, the defendant contends that claimants failure to preserve the written documents such as the Credit Agreement is a breach of the Acts quoted in points8-12 and the defendant may seek the permission of the court to disclose such failings to the various enforcement agencies, who deal with such matters should this case go to trial

 

14. Notwithstanding points 8-12, it is drawn to the courts attention that I am in possession of correspondence between Mr Pt2537 and Francis Bennion the drafts man of the Consumer Credit Act 1974. In this correspondence Mr Bennion makes it clear that, and I quote from the Email "Only if there was no written agreement in the first place is the creditor excused from supplying a copy" this was in response to the question "it has been argued that the words (IF ANY) contained within s77 (1) and 78(1) CCA 1974 allow the creditor to not provide a copy of the credit agreement on demand under those sections" Copies of all of this correspondence can be produced before the court should it be necessary and further more Mr PT2537 is prepared to attend court and give evidence to the facts contained within those emails should it be necessary

 

The credit agreement and the Consumer Credit Act 1974

 

15. The consumer Credit Act 1974 is a plainly enacted statute for the protection of consumers. The Act sets out the form and contents of Regulated credit Agreements and the consequences of not complying with the Act. The act further sets out that a debtor may upon request in the prescribed manner under s77 or 78 request a copy of the "executed agreement" between parties and the creditor must comply within 12 workings days.

16. Since the claimant has admitted it does not hold a copy of the original agreement, it is difficult to see how they could discharge their obligations without the original documentation to refer to and without the original document it is impossible to assess if the agreement fully complies with the requirements of the Act

 

 

17. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

18. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

19. 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 amount of credit, 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

 

20. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

21. Notwithstanding point 20, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

23. If the claimant cannot produce the credit agreement before the court,compliant with the legialtion, bearing the defendants signature as required by the Act it is suggested that the claimant's claim cannot succeed.

 

 

24. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

25. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

26. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

27. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

28. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

29. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

30. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

31. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare that unless the claimant can produce the credit agreement containing the prescribed terms require by the Agreement regulations SI 1983/1553at schedule 6 column 2 and signed by the debtor and creditor as required by the Consumer Credit Act 1974 thus showing the agreement being properly executed and compliant with the Act and subsequent regulations then the defendant requests that the court declare the agreement unenforceable and discharge the defendant from all liabilities as the case cannot proceed till such time as the agreement be produced and if the claimant cannot produce the agreement as it has been lost as suggested then the agreement cannot be enforced

 

 

Default Notice

 

 

32. Notwithstanding matters already pleaded, the Consumer Credit Act 1974 sets out in s87 (1) that a creditor must issue a default notice before it can become entitled to demand repayment due to a breach of the agreement on the debtors part.

 

33. I do not remember ever receiving a Default Notice in the prescribed format and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

34. Mere screen prints do not prove that the default notice was sent nor do they show that such notice was in the prescribed format, giving the prescribed timescale to remedy any default or that the notice was complaint with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

35. Notwithstanding point 31, 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)

 

 

36. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it stands to reason that with such weight attached to a Default notice under the Consumer Credit Act 1974 and the regulations that the claimant would surely be able to produce a copy of the document to show that it was indeed complaint with the legislation as it is not acceptable to merely assume that such a document would have been sent and would have complied. Accordingly the claimant is placed to strict proof thereof that the documents were sent and were compliant as laid out in points 31 - 34

 

37. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

38. The claimant openly admits that it cannot produce the agreement and therefore the defendant considers that there is no reasonable prospect of success for the claimants case given the matters pleaded in this defence

 

39. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

 

 

Right this is no way near finished, so dont send it yet but it should be done by the morning, i just wanted to get it posted to see how it reads

[jools63]

Blimey Paul you don't do things by halves!

[pt2537]

Hey, thats not even the half of it, wait til its finished

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

 

2. This defence is made pursuant to the order of District Judge XXXX and is to replace the original defence submitted on xx/xx/2008 in its entirety

 

3. The claimants new Amended particulars of claim are still not in full compliance with the Civil Procedure Rules in particular practice direction 16 Para 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1)

A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2)

Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

 

4. The claimant cites at point 4 of the particulars that this claim is based upon a written loan agreement between parties, yet the claimant has failed to provide a copy of the contract or any terms and conditions of the agreement between parties as required under the civil procedure rules

 

 

5. On xx/xx/2007 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit Jools1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

6. The claimant failed to supply the requested information and refused to comply citing that they believed that I held sufficient information to reply to the claim. The defendant denies this was the case and further cites the fact that the court ordered that the claimant re submit a fully particularised set of particulars of claim

 

7. After giving full consideration to the claimants revised particulars of claim, without production of the written agreement, which the claimant cites that I have allegedly breached, I am unable to admit that I am indebted to the claimant and further more am unable to assess if the contract which the claimant claims to be reliant upon is legally enforceable or is properly executed as required by the Consumer credit Act 1974. Consequently, since the claimants case is still substantially flawed and by the claimants own admission they do not have the written document I deny that I am indebted to the claimant and place the claimant to strict proof that the debt is valid and further more legally enforceable under the Consumer Credit Act 1974

 

 

Document Retention and the claimants failures

 

 

8. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 77 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

9. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

10. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

11. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

12. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

13. Therefore, the defendant contends that claimants failure to preserve the written documents such as the Credit Agreement is a breach of the Acts quoted in points8-12 and the defendant may seek the permission of the court to disclose such failings to the various enforcement agencies, who deal with such matters should this case go to trial

 

14. Notwithstanding points 8-12, it is drawn to the courts attention that I am in possession of correspondence between Mr Pt2537 and Francis Bennion the drafts man of the Consumer Credit Act 1974. In this correspondence Mr Bennion makes it clear that, and I quote from the Email "Only if there was no written agreement in the first place is the creditor excused from supplying a copy" this was in response to the question "it has been argued that the words (IF ANY) contained within s77 (1) and 78(1) CCA 1974 allow the creditor to not provide a copy of the credit agreement on demand under those sections" Copies of all of this correspondence can be produced before the court should it be necessary and further more Mr PT2537 is prepared to attend court and give evidence to the facts contained within those emails should it be necessary

 

The credit agreement and the Consumer Credit Act 1974

 

15. The consumer Credit Act 1974 is a plainly enacted statute for the protection of consumers. The Act sets out the form and contents of Regulated credit Agreements and the consequences of not complying with the Act. The act further sets out that a debtor may upon request in the prescribed manner under s77 or 78 request a copy of the "executed agreement" between parties and the creditor must comply within 12 workings days.

16. Since the claimant has admitted it does not hold a copy of the original agreement, it is difficult to see how they could discharge their obligations without the original documentation to refer to and without the original document it is impossible to assess if the agreement fully complies with the requirements of the Act

 

 

17. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

18. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

19. 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 amount of credit, 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

 

20. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

21. Notwithstanding point 20, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

23. If the claimant cannot produce the credit agreement before the court, compliant with the legislation, bearing the defendants signature as required by the Act it is suggested that the claimant's claim cannot succeed.

 

 

24. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

25. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

26. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

27. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

28. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

29. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on

Wilson v First County Trust Ltd

[2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

30. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

31. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare that unless the claimant can produce the credit agreement containing the prescribed terms require by the Agreement regulations SI 1983/1553at schedule 6 column 2 and signed by the debtor and creditor as required by the Consumer Credit Act 1974 thus showing the agreement being properly executed and compliant with the Act and subsequent regulations then the defendant requests that the court declare the agreement unenforceable and discharge the defendant from all liabilities as the case cannot proceed till such time as the agreement be produced and if the claimant cannot produce the agreement as it has been lost as suggested then the agreement cannot be enforced

 

 

Default Notice

 

 

32. Notwithstanding matters already pleaded, the Consumer Credit Act 1974 sets out in s87 (1) that a creditor must issue a default notice before it can become entitled to demand repayment due to a breach of the agreement on the debtors part.

 

33. I do not remember ever receiving a Default Notice in the prescribed format and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

34. Mere screen prints do not prove that the default notice was sent nor do they show that such notice was in the prescribed format, giving the prescribed timescale to remedy any default or that the notice was complaint with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

35. Notwithstanding point 31, 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)

 

36. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

 

37. I note the opening part of section 88(1) CCA 1974, which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

38. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

 

39. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it stands to reason that with such weight attached to a Default notice under the Consumer Credit Act 1974 and the regulations that the claimant would surely be able to produce a copy of the document to show that it was indeed complaint with the legislation as it is not acceptable to merely assume that such a document would have been sent and would have complied. Accordingly the claimant is placed to strict proof thereof that the documents were sent and were compliant as laid out in points 31 - 34

 

The Defendants direct response to each point of the new particulars of claim

 

40. In respect of point1, 2 and 3 of the claimants particulars of claim, point 1 and 2 are accepted as correct, point 3 is admitted to the extent that the defendant held a current account however the defendant is confused how the current account could be held as defaulting with a positive balance of £4342.06 and therefore it is denied that the account defaulted as suggested and it is further denied that such default notice or formal demand was received

 

41. In respect of the loan provision of point 3 (a) , since the claimant cannot produce the agreement it is denied that the info contained within that section is correct and I have no way of confirming if the information stated is correct or incorrect and it appears nor does the claimant so it is denied in the absence of any further information

 

42. In response to point 4, the defendant is embarrassed at pleading to point 4, in particular the claim made that an agreement was made in writing, as the claimant admits that they do not have such agreement in their possession, the consequences of failing to produce such agreement are dealt with in full in points 8 through to 31 of this defence

 

43. In respect of point 5, the defendant fails to see any importance attached to such statements, as previously stated the current account was in credit at the points referred to within the particulars of claim and further more the claimant fails to set out clearly their relevance, accordingly the defendant accepts that the statements are from the defendants current account and not in relation to any loan

 

44. In respect of point 6, the claimant submits a series of statements relating to a loan account, however without the agreement supporting such statements I am unable to make any further comment with regards to the statements and im unsure of the relevance of such statements accordingly I request the claimant confirms what relevance it seeks to place upon these documents, given that no agreement has been supplied to support them

 

45. In respect of points 7, 8 and 9 they are denied in their entirety, point 7 the claimant cannot it would appear to substantiate such provisions of any agreement that the defendant failed to adhere to points 8 & 9 are dealt with in great detail above and it is again denied that such documents were received

 

46. In response to point 10 , it is again denied and without the written credit agreement containing the figures in relation to this matter I am unable to accept the figures as being correct or otherwise

 

47. In response to point 11, it is denied that the claimant is entitled to any form of contractual interest on any figures claimed. The claimant has not produced any written contract nor do they make reference to the provision or clause number which gives them a right to contractual interest

 

Conclusion

 

48. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

49. The claimant openly admits that it cannot produce the agreement and therefore the defendant considers that there is no reasonable prospect of success for the claimants case given the matters pleaded in this defence

 

50. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial especially given the extensive reference to statutes, regulations, case law and other materials which support matters pleaded by me in this defence

 

51. 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 Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

52. This claim should never have been brought before the court as the claimant would most certainly be aware of the case law quoted and that such action would have little prospect of success without the credit agreement or a copy of it, therefore I invite the claimant to give serious consideration to withdrawing this claim. Should the claimant fail to withdraw their claim I shall request the court consider costs incurred by the defendant in defending this claim and shall forward a schedule of costs for the court to give consideration to should this proceed to trial and judgment be given in my favour

 

53. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006 to avoid the provisions of section 127(3) of the 1974 Act, 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 xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

 

 

 

 

 

 

 

 

There we go,

 

Right just need to have a reread through it to make sure it makes sense,

 

i will PM you my full name to include in the document where it says Mr Pt2537 and i am happy to forward you the emails i refered to in the defence and further more will be happy, if it gets that far of course to go to court and give evidence should it be needed

 

I hope that helps

[manchester1]

pt2537, When you qualify you can represent me anytime( if i can afford you)

 

 

Manchester1

[citizenB]

WOW.. if I were RBoS, I would give in as soon as I had read this.

[pt2537]

Thanks guys, lets hope it fillets their donkey well and truly:D,

[jools63]

Paul you never fail to take the stress away....fantastic

 

I also was thinking last night if it does come to court I am more than happy to pay your expenses and a hefty fee to come down to Brighton to assist at the Hearing if it gets that far. I hope you can consider this.

 

BTW should I send the covering letter with the defence asking for the Hearing to be postponed because of my personal circumstances?

 

With much gratitude as ever

 

Jools

[pt2537]

Paul you never fail to take the stress away....fantastic

 

I also was thinking last night if it does come to court I am more than happy to pay your expenses and a hefty fee to come down to Brighton to assist at the Hearing if it gets that far. I hope you can consider this.NO, no need, if they are supremely stooooooopid and decide that despite this they will go to trial then we will deal with costs when we win, that is dealt with in point 52;)they will be the ones paying the costs

BTW should I send the covering letter with the defence asking for the Hearing to be postponed because of my personal circumstances?

Its worth sending a letter to the court, did you telephone the court? its best to phone them and tell them so thatthey note the file, then send a letter confirming the telephone conversation

With much gratitude as ever

 

Jools

 

No problems Jools, i think ive dealt with the main bits in blue, im just going to have a read of the defence this morning so that i can see if there are any spelling mistakes or typos and then i will post to say its good to go

[jools63]

Thanks for everything Paul - if you could PM me your full name then I can send it off today.

I would love to see the look on Katy MacSporran "Legal Assistant" 's face when she sees this!!

What would be a satisfactory outcome would you say?

[pt2537]

Thanks for everything Paul - if you could PM me your full name then I can send it off today.

I would love to see the look on Katy MacSporran "Legal Assistant" 's face when she sees this!!

What would be a satisfactory outcome would you say?

Hi Jools

i already have, sent it last night

 

check your PM inbox

 

Regards

paul

[pt2537]

What would be a satisfactory outcome would you say?

 

Hmm, hard to say, a full royal pardon Nah only kidding,

 

what would you say is a satisfactory outcome jools?, what would you be happy with? personally i think the judge dismissing their case and writing off the debt would be the best outcome and providing the judge isnt a complete wally and ignores the law, it is the most likely one i would say, their case cannot proceed without the agreement itself and they have broken various money laundering laws by failing to retain the agreement IMHO

[jools63]

Hiya Paul,

 

I've just read it again from start to finish and I have to say I would be terrified if that came through my door!

The day I came across this site was one the best things I have ever done, I don't think I can express my thanks strongly enough.

 

Well it's in the post now together with a letter saying I can't attend on the 1st July. I await the next stage with bated breath!

 

You are a true gem!!

 

Jools

[pt2537]

Hi Jools,

 

thats cool, i would be extremely surprised if they continued

 

if you recieve a notice of discontinuance,let me know ASAP as you should make an application for costs due to their unreasonable behaviour and costs are based upon the litigant in person rate of £9.25 per hour

 

so it can become quite a substansial amount, but thats depending upon what they do next, bless them

[goorooji]

I am subscribing to see the outcome.

 

Well done another great job.

 

I have received a N150 form and will need help, if you can help here is my thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/135558-help-court-summons-restons-5.html#post1530895

 

I think my case is similar to this one no CCA... Restons/HFC.

 

Keep up the good work.

 

Thanks.

 

Kind regrads. G

[pt2537]

Jools,

 

is there any news yet?

 

Regards

paul

[cashins]

sub

[pt2537]

I cant wait for the update;)