Help needed please! CCJ's GE money via LINK.

[pt2537]

Hi There

 

Welcome to the CAG,

 

since they have actually filed court action against you we need to get the ball rolling as soon as possible,

 

who has issued the claim against you?

 

you need to send whoever issued the claim this letter

 

 

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

 

 

send this via special delivery as its vital they get this as a matter of urgency and that you have proof it was recieved

 

i will be back shortly to add some more advice

 

Regards

paul

[pt2537]

The claim form will need to be acknowledged,

 

now then, were is the claim form from, does it mention Northampton County Court Bulk Center ?

 

there should be a court Stamp on there, if its issued via northampton then you should be able to use Money Claim Online the courts online service to file you acknowledgment of Service

 

the letter i have posted requests that they disclose the documents and if they fail all you can do is file a defence highlighting the failure

 

Can i ask, what the Particulars of the Claim are? obviously dont post any personal details but it helps to know what they are actually claiming,

 

many DCAs dont even know how to present a correct set of particulars so it would help to know what they have said minus the personal details

[pt2537]

OH

 

Well,a very informative set of particulars (NOT)

 

Oh dear, right then here we go

 

You have 14 days from the date of service to file your acknowledgment of service so there is no need to do it this minute i would wait and calm down a little as its quite stressful receiving a claim

 

i can under stand how you are feeling but please try not to worry at this stage

 

we need disclosure of the documents per the letter i posted before we can look at what they are basing their case on

 

Many DCAs have been known to use Mcol as a quick and easy method of churning out claims by the bucket load

 

some people will pay up under fear of the claim and others will not kjnow what to do and will not respond allowing these DCAs to file for default judgment

 

however, the particulars you have posted are not sufficiently particularised to comply with the civil procedure rules Part 16 so this on its own is a basis to ask for their claim to be thrown out

 

they should have enclosed a copy of the credit agreement and other documents to the claim form so their case as it stands is very weak

 

however we must wait to see what they disclose

 

have you had a notice of assignment saying the debt has been sold?

 

also have you had a default notice?

 

Regards

paul

[pt2537]

Hi deb4tlj

 

 

ok well a default notice needs to be served and be in the correct form to allow them to demand money outstanding by way of a breach of contract

 

the Notice of Assignment needs to be in written form also, a telephone call to say you owe them money is not sufficient

 

it is not unusual for personal copies of loan agreements to not have a signature on them

 

however, lets worry about what forms they have when or should i say if they send anything

 

Regards

paul

[pt2537]

Hi there

 

Send the letter i posted in post number 2 in the morning to link financial as they are the claimants in this case and they have the duty to disclose the info. Send it via Special delivery

 

The Acknowledgment of service must be completed within 14 days of service. by all means you can fill it in and get it out the way, i would hold fire for a few days to see if anything comes through the post relating to this claim from link

 

the most important thing at this stage is the letter needs to be sent

 

Regards

paul

[pt2537]

No problem,

 

just so you know, and to put your mind at rest,

 

if they fail to supply any documents requested in the letter,i will happily draft a defence for you that basically says they have failed to disclose any cause for legal action,they have failed to disclose information requested and i will ask for their case to be thrown out for disclosing no grounds for legal action

 

then the decision will be up to the judge as to what he does

 

there are a great deal of knowledgeable people on the CAG who we can call on for help so youre in very safe hands:)

 

im sure the question was in the back of your mind as to what if they dont comply with the letter

 

well if they dont, they are only shooting themselves

 

i hope this puts your mind at rest

 

Kind Regards

paul

[pt2537]

hi, the claim should automatically be transfered to your local county court.

 

this will happen when you file a defence, the defence will be sent to the claimant by the court and the claimant will then consider if it wishes to continue with the claim.

 

 

if the claimant decides to continue ,since you are individuals the claim will be transfered to your local court

 

i hope this helps

 

regards

paul

[pt2537]

Hi,

 

no it shouldnt.

 

the above letter is not a CCA request, far from it.

 

iti s a request for disclosure under the civil procedure rules. so no need to send any fee, you are entitled to the documents the other party is relying upon under the CPR

 

so no panic you dont need to pay

[pt2537]

hi,

 

the Southwark one? was this the address on the claim form which came through from the court?

[pt2537]

The address for the claimant on the CCO was

Link Financial Ltd

Camelford House

89 Albert Embankment

London SE1 7TP

 

so we sent the first letter off to that address, however, upon checking the CCO it also says "address for sending documents and payments (if different)

Link Financial Limited

5 Trecenydd Business Park

Caerphilly

Mid Glamorgan CF83 2RZ

so we have also sent the same letter to this address. Hope we've done the right thing. :-|

 

 

Hi there

 

Dont fret,

 

its fine,well start the clock ticking from the point where the first letter was delivered

 

after all we live in the age of technology so im sure they can email,fax and phone the relevent departments who can answer your letter so thats their problem

 

regards

paul

[pt2537]

calendar , were not that generous to give em working days:D

[pt2537]

can i just also check you filed the acknowledgment of service?

[pt2537]

Super, its good to keep an eye on things

[pt2537]

hahahaha perfect timing eh?

[pt2537]

ok well in that case we need to look at a defence to their claim

 

when does your defence need to be with the court?

 

i can happily help you with the defence

 

Regards

paul

[pt2537]

ok well dont worry about the defaults at this stage, lets deal with the claim. then once this is dealt with we can look at the defaults

 

i will try and post a defence by the close of play tomorrow , that said, i will more than likely have it finished by this evening

[pt2537]

Hi,

 

yeah had a good Crimbo, got horribly drunk and am paying for it now:)

 

i hope yours went well too:)

 

if i can ask a couple of questions

 

have you ever recieved the notice of assignment?

 

whose name is on the claim form? is it link or the original creditor?

 

did the particulars include the account number?

 

simple yes or no to Q1 & 3 Will suffice and Q2 all i need to know is who has issued the claim

 

these are important questions which will help with the defence

[pt2537]

right then

 

ok that makes things very interesting,

 

i will get to work right away,

 

when i post up the finished defence i would suggest that it is sent to the court via special delivery nothing less and send it as soon as possible

 

unfortunately , due to the huge kicking im going to give Link, its likely that the defence will be too big to file online:)

[pt2537]

sorry more questions, did you receive a letter from anyone saying that they were taking you to court?

[pt2537]

Excellent!!

 

thats exactley what i wanted to hear

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

Link Financial Ltd- Claimant

 

and

 

 

Deb4ltj - 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. Further to point 3 the particulars are extremely vague and do not disclose any account numbers relating to the debt which would be required to allow me to investigate the claimants claims that I am indebted to them and to respond accordingly

 

5. As in this case the Credit Agreement between parties is the written agreement referred to in point and which forms the basis of this claim, the document must be produced to allow me to asses if it complies with the requirements of the Consumer credit Act 1974 and Regulations made under the Act, should the document fail to comply with the Act, it may be rendered irredeemably unenforceable depending upon which parts it fails to comply with.

 

6. 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

 

7. 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

 

 

8. 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

 

9. 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 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

 

10. 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 particularised 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

 

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

 

 

Pre-action protocols

 

12. 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, No notification of intended legal action was received from the claimant

 

The Request for Disclosure

 

13. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules (a copy of which is attached to this defence), 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.

 

14. 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

 

15. 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

 

 

16. 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

 

17. 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)

 

18. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and includes inter alia a term stating the amount of the credit.

 

19. The prescribed terms must also be contained in the agreement itself, and not in a separate document headed terms and conditions or such like.for the authority of this comment 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."

 

20. If the agreement does not contain these terms contained within the SI 1983/1553 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. 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

 

24. With regards to the Authority cited in point 23, 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."

 

25. 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

 

26. 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 and further more this must be served before a creditor can take legal action

 

27. 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

 

28. Notwithstanding point 26, 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)

 

29. 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

 

30. I have no knowledge of any debt owed between myself and the Claimant xxxxx therefore I put the claimant to strict proof that they are entitled to take this action and that I am indebted to them

 

31. As stated in point 7, No notice of assignment was delivered to me, 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

 

32. I put the claimant to further proof that the notice of assignment was sent in accordance with section 136 Law of Property Act 1925 and section 196 of the same act I require the claimant disclose proof of posting per s196 LoP Act 1925

 

33. 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

 

34. 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

 

35. 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

 

36. 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

 

37. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 13 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.

 

38. 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

 

 

 

 

Right then

 

THIS IS IN NO WAY FINISHED SO DO NOT USE YET

 

 

i have posted it cause its easier to go through on the web than it is using word pad

 

I will confirm when i have finished

 

Regards

paul

[pt2537]

Right having reread and adjusted the Defence, i think its okay to use

 

you should attach a copy of the CPR request to the defence and also a copy of the proof of posting.

 

also you will need to amend the parts marked with an xxxx and check everything reads correctly and amend as needed

 

Good luck,

 

regards

 

paul

 

PS any questions ask away

[pt2537]

Hi Dave

point 20 refers to the details as laid out in 60 and 61

 

60. Form and content of agreements.

— (1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of— (a)

the rights and duties conferred or imposed on him by the agreement,

 

(b)

the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

 

©

the protection and remedies available to him under this Act, and

 

(d)

any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

 

(2) Regulations under subsection (1) may in particular— (a)

require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

 

(b)

contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

 

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

 

61. Signing of agreement.

— (1) A regulated agreement is not properly executed unless— (a)

a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b)

the document embodies all the terms of the agreement, other than implied terms, and

 

©

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

 

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless— (a)

the requirements of section 58(1) were complied with, and

 

(b)

the unexecuted agreement was sent, for his signature, to the debtor or hirer by post not less than seven days after a copy of it was given to him under section 58(1), and

 

©

during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and

 

(d)

no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

 

 

(3) In subsection (2)©, “the consideration period ” means the period beginning with the giving of the copy under section 58(1) and ending— (a)

at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or

 

(b)

on its return by the debtor or hirer after signature by him,

 

 

whichever first occurs.

(4) Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall apply with the substitution for “by the debtor or hirer ” of “by or on behalf of the debtor or hirer ”.

 

 

sections 60 and 61 set out the requirements of the agreements and 65 refers to the consequences of the failure of the document to comply with 60 and 61

 

65. Consequences of improper execution.

— (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

therefore technically its correct as 65 leads to section 127 and further to 127(3) which is the section which render's the agreement unenforceable

 

regards

paul

[pt2537]

Hi Dave, i laid this out in this way because the op may not be as well up on the CCA as we are.

 

also points 22,23& 24 set out that the agreement would be unenforceable if it doesnt include the prescribed terms;),ive set everything out being mindful that the judge may not be as clued up on CCA legislation

 

but you are right that the agreement would be unenforceable if no prescribed terms are present

 

regards

paul

[pt2537]

ok lets get this straight, they are suing you both? was the agreement a joint one?

 

does the claim forms have different claim numbers or the same number?