Help! Received Court Claim Form**WON**

[MR2Phil]

Cheers both of you.

 

Paul, I will keep an eye out for your defence and FC, I will phone the court to double check their opening times over the festive period.

 

Paul, will your defence be based (at this stage) purely on the fact that they have not supplied the necessary info? Even though their deadline passed ages ago I am still scared about the fact that a big fat envelope could be waiting for me when I get home today or turn up tomorrow...I would like to mention the fact that the amount (which now stands at not far away from a grand with their interest of £0.68 a day from 21st Nov) is made up of the penalty charges but I won't know how much until I receive the info I've asked for.

 

I've been looking at lots of other people's cases like this and seen some dragging on for months!

[MR2Phil]

Right, just phoned the court, spoke to a lovely helpful lady who informed me that as long as my defence is in before 4pm on the 31st then it will be ok (with 29th being a Saturday).

 

Mind you, she also said that they have already received a defence from me!!! This was the letter that I sent in saying that I was UNABLE to construct a defence at the moment due to the lack of information being supplied to me by CL Finance. Anyway, she also reinforced the point that they are unable to use in court anything they have not submitted to me if I have asked for disclosure.

 

Has there ever been a case that you guys know of where the claimant says that they DID send the docs etc and tried to use these in court? I would expect the judge to ask for proof of receipt at my end?

[pt2537]

Phil,

 

while it is possible that the big fat envelope will turn up, the simple fact is the rules of the court require that where a claim is based upon a written contract , a copy of the contract should be attached to the claim form,

 

since they failed to do this, it could be considered unfairly prejudicial against you as you simply have not had the chance to prepare any defence

 

i will include a piece on the fact that you have tried to resolve this but they have not been fair or helpful

 

i will also include the fact that the figure claimed relates to penalty charges too

 

Dont worry, i will get something posted at somepoint this evening

cant say exactley when but it will be tonight

[FANTASY CHARGES]

noticed blackie was extra careful in a defence recently

 

by inserting this at the end of the defence

 

just a suggestion PT

 

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 xxxxxxxxxxx the Consumer Credit Act 1974 is the relevant act in this case

 

every extra nail in the coffin helps !

[MR2Phil]

Cheers guys! If you're local to the London/Essex area I'll have to buy you many drinks one day!!

[pt2537]

noticed blackie was extra careful in a defence recently

 

by inserting this at the end of the defence

 

just a suggestion PT

 

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 xxxxxxxxxxx the Consumer Credit Act 1974 is the relevant act in this case

 

every extra nail in the coffin helps !

 

Hehehehe, No worries FC, i wrote that defence for pblackie;-)

 

so no worries there

 

i'll nail em to the floor thats for sure , well i'll do my best anyway,

 

Merry Christmas to you guys

 

Regards

paul

 

Oh BTW phil, im in southampton so not too far away

[MR2Phil]

I have blackie's defence saved for reference purposes!

 

Southampton eh? Hmmm...had a good weekend there not too long ago!

[pt2537]

theres a few more of my defence's floating around on here so you will probably come across em

 

yeah well, actually were in Eastleigh just outside of Southampton not a bad place to go drinking i suppose, as good as anywhere else i suppose

 

give us a shout when youre next down this neck of the woods

 

Regards

paul

[FANTASY CHARGES]

Downtime Notice

 

Money Claim Online is currently unavailable to all users

The Money Claim On-line (MCOL) service is unavailable from 18:00 on Wednesday 19th December 2007 until 9:00 a.m. on Monday, 31st December 2007, whilst an upgrade of the application takes place.

During this time, customers will be unable to access MCOL to issue any process (e.g. issue a claim), file a document (e.g. a defence) or view case records.

 

However the Help Desk at Northampton for MCOL customers will still be available on the 21st December and 27th/28th December 2007 and staff will be able to deal with queries during normal office hours.

Please note that the Help Desk and offices at Northampton will be closed on the following dates over the Christmas period:

• Monday 24th December 2007
  
• Tuesday 25th December 2007
  
• Wednesday 26th December 2007
  
• Tuesday 01st January 2008

If you require any further information, please contact the help desk, whose details are:

 

Downtime Notice - HMCS Money Claim Online

 

we always check and double check !!!!

[pt2537]

Not a problem as my defence will surely be more than the 8000 character limit which money claim has

[MR2Phil]

Cheers peeps. So I'll definitely be posting it in then!

 

Paul, will be sure to buy you that beer next time I'm down that way!!

[pt2537]

Erm Phil

 

looking over the POCs it says Assigned to the claimant on the 21st November 2007, but your first post was on the 28th november saying you had recieved a claim

 

now by my reckoning thats 7 days from the assignment to you posting.

 

this doesnt sound correct so can i ask what is the dates on the claim form? and do you still have the envelope which it came in to check the post mark?

 

something sounds very iffy about this assignment i must say, and if we can prove the issued proceedings before they were assigned the debt they are up the spout

[MR2Phil]

No, sorry, Paul...I don't have the envelopes...

 

Someone else in this thread was saying something about the Assignment date being out and even I thought it was a bit weird that I received the claim and then the notice of Assignment...something didn't seem right to me...I'm annoyed that I didn't keep the envelopes but didn't realise there would be so much importance attached to them

 

Oh, and the dates on my Claim form say it was assigned to them on the 21st November. Date of issue of claim was 26th.

[pt2537]

right then phil

 

can you confirm the dates on the notice of assignment and the claim form please

 

just for the record,

 

it just makes my life a little easier to come up with a arguement

[pt2537]

just so you know, the reason i ask is under the Law of property act 1925 an assignment should be sent with proof of posting if it is to be effective

 

now if the proof of posting shows it was sent after the claim was filed they are in the ****e as the assignment is bad and not effectual in law

[pt2537]

oh and can you confirm when the assignment arrived with you

[MR2Phil]

Sure. I received Assignment on 3rd December. It was actually dated 23rd November (the letter, not the postmark of the envelope).

 

Assignment was 21st November

Issue of form was 26th November

[pt2537]

ok thanks Phil,

 

can i also just confirm who the claimant is, is it CL, Howard cohen or GE Capital

 

sorry for all the questions but i just want to get everything clear

[MR2Phil]

No worries, mate. The claimant is CL Finance Limited. GE Capital assigned them the debt on 21st November.

 

Getting my nut down now and then got a long old train journey so may not be back until tomorrow night, so please don't think I don't care or am ungrateful in any way if I make no appearance!

 

Cheers, have a good night,

 

Phil

[pt2537]

ok Phil,

 

i wouldnt think that anyway mate:)

 

i will start working on an arguement for this case now i have the full facts

 

i feel the case is strong here in your favour although ultimatley its up to the judge

 

still we will give it our best shot

 

Regards

paul

[pt2537]

Hello Phil,

 

 

just so you dont think ive forgotten, i am working on the defence i was just looking to clarify a few issues surrounding hte assignment of the debt and its that which has held me up

 

i will get around to posting a defence for you, although it will not be till tomorrow evening im afraid,due to these issues

 

i will start work on it tonight and hope to get it finished and posted tomorrow,

 

Regards

paul

[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. 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.

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

 

7. Further more the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on the 3rd December 2007 and I note the date of issue on the claim as the 26th November 2007 which suggests that the notice of assignment, which must be served before the assignment is effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice

 

8. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularized the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way an put the claimant to strict proof thereof

 

9. I will now look at the important issues relating to this case which must be brought to the courts attention

 

 

Pre-action protocols

 

10. The claimant xxxxxxxxxx has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched immediate litigation and it would appear they even did this before the assignment was carried out correctly, I had tried to enter into negotiations with the claimant to avoid the necessity of this action but all attempts were rebuffed

 

11. The assignor GE Capital had refused my attempts to resolve this, I had offered to pay £80 per month towards this debt and the claimant refused this offer, which I feel was completely unreasonable. At this point, due to these proceedings such offer must not be viewed as an admission of any liabilities for the debt and was made purely on a without prejudice basis

 

The Request for Disclosure

 

12. 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.

 

13. 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

 

14. 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 Credit Agreement

 

 

15. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

16. Firstly, the agreement must contain certain 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)

 

17. 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

18. If the agreement does not contain these terms 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

19. Notwithstanding point 18, 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

 

20. 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).

 

21. 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

 

22. With regards to the Authority cited in point 21, 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."

 

23. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

 

The Default Notice

 

24. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

25. 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

 

26. Notwithstanding point 25, 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)

 

27. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

The Assignment of the debt

 

28. As stated in point 7, the notice of assignment was delivered to me on the 3rd December 2007 after the claimant had instigated this action, consequently, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925

 

29. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

 

30. If no Deed of Assignment can be produced it is requested that the court strike out the claimants case as the claimant will not have a right to bring this action against me in their name

 

Conclusion

 

31. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

32. I further ask the court consider striking out the claimants case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

33. 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

 

34. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 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.

 

35. 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 xxxxxxxxxxx, believe the above statement to be true and factual

 

 

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

 

Date

 

 

 

 

 

 

 

 

 

 

 

Hi Phil,

 

Sorry for the delay in posting this, heres my suggestion for the defence

 

have a read through and any suggestions or questions you have let me know

 

regards

paul

[MR2Phil]

Paul mate, that looks and sounds absolutely first class. Thank you so much. I will get this edited to suit me and get it sent off tomorrow. You, sir, are one of life's genuine good people (sorry, am full of the old Christmas 'spirit'...!).

 

One thing...I received a letter on Christmas Eve from the court saying thanks for your defence, we will contact the claimant...but I already told them this WASN'T my defence, it was merely a letter saying I was struggling with the defence as they wouldn't send me the requested documentation. I'm going to send the above in clearly marked MR2PHIL'S DEFENCE!!!!!!! so they realise this time. Does it matter that they think that I've already submitted something????

 

Cheers and hope you've had a wonderful Christmas!!

[pt2537]

Hi Phil

 

You're very Welcome mate,

 

i would take the defence to the court if you can an hand it in personally and explain that you had not filed a defence and explain what the letter was for.

 

if you cant don't worry, just send the defence to the court making sure you put all the claim details on the defence header and amend the parts which need it

[MR2Phil]

Morning! (Ooops, its afternoon!)

 

What do you mean by claim details in the defence header? I just changed all the bits that needed to be for my personal details etc (like name, address, claim number, who the claimant is and so on).

 

I won't be able to take it to the court as its in Northampton and I really can't be arsed driving all that way!