Carter/freds claimform - cat 'debt' **WON DISC'D***

[mikecymru]

Yes I sent the letter as asked.

 

I have had no documents yet, they would have had the letter on the 5th of december.

 

I am not sure what a cpr letter is??

 

I am gettign a bit worried becuase I know that with these things timing is everything. I am concerned about missing key dates and with xmas coming.

 

Thanks

 

Mike

[pt2537]

letter in post 3 is a cpr letter (CPR= Civil Procedure Rules)

 

right , dont worry,

 

you have filed the Acknowledgment of service saying you are going to defend all the claim Yes?

 

you have sent the CPR letter Special delivery and have proof of Delivery Yes?

 

as long as you have done this dont worry

 

we can put together a defence , but i need to know exactly when the letter was delivered and how long you gave them to reply in the letter

 

once they have passed this time frame we can file a defence saying they ignored your request and there fore we cannot defend if we dont know what to defend;)

[mikecymru]

ok paul,

 

Thanks

 

Yes I have done both of those things

 

I sent the letter on the 5th special delivery delivered on the 6th December.

 

I gave them 14 days as per your template.

 

So they should respond with documents by the 20th/21st at the very latest, (Highly unlikely) but I also need to submit ny defence by 26th.

 

I think the MCOL are not online that week. so I will need to post, with the christmas post will this be possible? or have I got it all wrong?

 

Mike

[pt2537]

ok paul,

 

Thanks

 

Yes I have done both of those things

 

I sent the letter on the 5th special delivery delivered on the 6th December.

 

I gave them 14 days as per your template.

 

So they should respond with documents by the 20th/21st at the very latest, (Highly unlikely) but I also need to submit ny defence by 26th.

 

I think the MCOL are not online that week. so I will need to post, with the christmas post will this be possible? or have I got it all wrong?

 

Mike

Right then mike,

 

heres the plan,

 

i will post a defence for you to consider, its up to you if you use it or not and is offered purely as a guide / help as i am not a qualified lawyer,

 

the best thing to do is consider that on the 20th if nowt comes through, get this to the post office and send to the court by special delivery

 

my defences are too big for Mcol anyway

[postggj]

not butting in

send it by special delievery

they will get it next day

[pt2537]

Mike

 

can you post the particulars of Claim which should be on the claim form,

 

obviously dont post any account nos or personal details but we could do with knowing what they are claiming on the form

[mikecymru]

Thanks paul

 

I will take a look, it will be a lot better than I can do I can assure you of that.

 

Have you used it before? and was it successful?

 

How do you know all this stuff? are you training to be a lawyer?

 

Mike

 

Thanks for your help

[mikecymru]

Paul

 

Is this what you mean?

 

The client is phoenix recoveries

 

Amount claimed 113,92

court fee 15,00

solicitors costs 50,00

total 178,92

 

 

Thanks

 

Mike

[pt2537]

Hello Mike,

 

well, im a 3rd year law student and hoping to beccome a lawyer, well actually a Barrister hopefully

 

ive helped a few people with regards to their defences

 

http://www.consumeractiongroup.co.uk/forum/general-debt/120328-county-court-summons-urgent.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt/118878-help-court-ccj-letter.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/117579-received-county-court-claim.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110742-bls-no-cca-but.html

 

so have a read through

[pt2537]

Paul

 

Is this what you mean?

 

The client is phoenix recoveries

 

Amount claimed 113,92

court fee 15,00

solicitors costs 50,00

total 178,92

 

 

Thanks

 

Mike

 

Hi Mike,

 

it should say something along the lines of

 

"the claimant claims money owed under a contract between parties blahblah blah"

[mikecymru]

Thanks Paul,

 

I will need to check it tonight when I get home, I'll post it up then.

 

Mike

[mikecymru]

Paul,

 

the particulars are as follows.

 

The claimants claim is for the price of goods sold and delivered by the claimant to the defendant

 

Particulars

 

Claimants ac no. xxxxxxxxxxx

to goods sold between 01/07/2002 and 30/06/2007 and the claimant claims 110.25

 

The claimant also claims interest thereupon pursuant to s.69 county court act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to 3.67

 

 

 

113.92 amount claimed

15.00 court fee

solicitors costs 50.00

total 178.92

 

thats the lot.

 

Cheers

 

Mike

[pt2537]

oh dear,

 

they are not too clued up these littlewoods people are they,

 

mike can i just confirm, this was a little woods credit account ? the type where you call up and order goods and pay them off weekly at x pound per week?

[mikecymru]

Paul,

 

Yes as far as we can remember it was such a long time ago.

 

but according to my wife yes.

 

Why? whats the deal?

[pt2537]

no its not a problem,

 

what it is , these companies try to avoid being bound by the CCA 1974 by claiming that its for goods sold,(they seem to try that where they dont have a credit agreement). well they cant, their service was provided under the CCA and thats that

 

they are talking out their ass if you ask me

 

regards

paul

[Curlyben]

If that's the case this thread is well worth a read.

http://www.consumeractiongroup.co.uk/forum/general-debt/115215-catalogues-mail-order.html

[mikecymru]

That seems pretty sneaky!

 

Our attack is still the same though right?

 

mike

[pt2537]

yes most definatley

 

Nowt changes

 

apart from the fact they have dug an even bigger hole for themselves

[mikecymru]

good.

 

 

So what do I need to do now?

[pt2537]

nowt, i will write a defence based upon the facts and post it on here,

 

then we can get a second opinion and take it from there

 

i should have a first draft done by around lunch time tomorrow

[mikecymru]

Thank you Paul,

 

If I can help in anyway please let me know.

 

Mike

[pt2537]

Hi Mike,

 

im a little behind but dont worry, i would hope to have a draft defence filed by the close of play today

 

i had another defence pop up out of the woodwork last night so i had to turn my attentions to that

 

i will have it done by the close of play today

 

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 xxxxxxxxxxxxx
   
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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
4. 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;
   
5. 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 Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant’s claim.
   
6. 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.
   
7. 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.
   
8. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet
   Credit account
   
   
9. The account no xxxxxxxxxxxx referred to relates originally to a Littlewoods catalogue account and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia
   (a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and
   
10. Therefore, based upon the claimant’s particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.
    
11. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974
    
12. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court
    
13. The Claimant is therefore put to strict proof that such agreement exists
     
     
    The Request for Disclosure under the CPR
     
     
    
    
14. 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 between 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.
    
15. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007
    
16. 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
     
     
    Consequences of Non Disclosure of the agreement
    
    
17. 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 would need 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)
    
18. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 17 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
    
19. With regards to the Authority cited in point 18, 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.”
     
    The default notice
     
    
    
20. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies
    
21. 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
    
22. Notwithstanding point 21, 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)
    
23. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful 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
     
    Conclusion
    
    
24. 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.
    
25. 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
    
26. 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. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

 

 

 

 

 

 

 

 

Hi Mike,

 

this is the first draft of what ive come up with this evening

 

any questions at all?

 

and anyone care to comment?

 

Regards

paul

[mikecymru]

PT that looks great, thankyou.

 

I have a few questions:-

 

I just need to fill in the xxxxxs ? nothing else?

 

This now gets sent directly to the court by special delivery?

 

what will the court do? how will they take a letter like this?

 

How and when will BC be notified?

 

Thanks

 

 

Mike

[pt2537]

Hi Mike ,

 

sorry for the delay in getting back to you, had to do the christmas shopping bit.

 

right then, the xxxxxxxxx parts require you to enter your personal details

 

the court will send a copy of the defence to BC,they will then look at the defence and hopefully realise they are peeing in the wind and call a haly yo the case

 

however that said they,may continue so we have to be prepared

 

my guess is they were hoping you wouldn't defend and they would win by default

 

i cant say what will happen next, but if they proceed you will recieve an allocation questionaire which you then give us a shout and i will help you through filling that in

 

read through the defence and make sure you are happy with it

 

then the statement of truth will need to be signed, i say read it cause a statement of truth MUST be exactley that to the best of your knowledge

 

if theres anything you want to check just shout

 

Happy Christmas

 

Regards

paul