bryan carter ccj! help

[pt2537]

pt25376537 :o:p:p will be along and have a look shortly. But, I don't think that what you signed contained the prescribed terms and is therefore unenforceable.

 

Reason? The two two halves don't match up in size - they aren't from the same sheet of paper. And they are both headed "Credit agreement regulated by the ...." etc etc. They are from two different sheets. It has been cobbled together. i tend to agree,Edz, it appears that the documents are two seperate parts and not part of the same documet,

 

obviously i cant read the lettering as its of poor quality, does it say on the part thats signed, "terms" or any other wording "overleaf" there needs to be a link between the front and back page and that would be a reference to the terms and conditions being on the back etc

 

if there isnt then its really non compliant and you have a good arguement

PT- do you agree?YES

.......

[Justforfun]

I have now reported Carter for cashing my £1 CCA request,not even responding to me either way,and then i got contacted by Capquest for the same debt??

I made Capquest aware of this fact and they backed of straight away.

Sorry for Hijacking,but it just goes to prove how much of a low life he really is.

[pt2537]

Hi Gilly, can i ask, Arrow say they sent you notice of assignment, can i ask if you can confirm when the notice was recieved? it is important that any assigned debt is assigned correctly

 

did you receive notice that the debt had been transfered before they started legal action?

 

also can i ask, since you have the copies of the documents they sent, are they clearly legible? can you clearly read the terms on there?

 

if you can give me an answer to these questions that would be great

 

also if you can answer the points i raised in post 26 that would be great

 

i cant help you with any defence til i get an answer

 

regards

paul

[gilly5001]

HI

Going to try and answer some of your questions,

 

The letter from MBNA confirming the debt was assigned to Arrow Global has no date on it , just a date of default as the 31/10/06.

The credit agreements are of poor quality and barely legible, the scans I posted is what Arrow Global sent to me when i cca'd Bryan Carter. I have read them and there is no mention of overleaf or another part referred to but it does say on the one that is signed , taht we should refer to the terms and conditions provided??

The one on the back states that these are paragraphs 1, 2 and 3 of terms and conditions which contain the financial and related details. The rest of your terms and condtions can be found in the full copy which is enclosed.

 

dont know if this is any help to you

i was really hopign bryan carter would have canceled the court action following my request for info, but obvioulsy he playing tough

 

Thanks

Gilly5001

[pt2537]

Hi Gilly,

 

thanks for that, very helpful

 

can you tell me the dead line for your defence please, just so i know how much time i have to play with

 

im not surprised that they didnt stop the legal action, im betting they will be lookin for a judgment by default. unfortunately they aint gonna get it;)

 

now can i ask if you have recieved a default notice from anyone in relation to this account?

 

if you have can you post a copy of it? its rather helpful if you can cause we can add that to the defence

 

also can you post a copy of the assignemtn please, it would be helpful.

 

obviously remove your personal details first

[gilly5001]

thanks for your help

 

I havent received any default notices that I can remember/are aware of.

The copy of the assignment is on its way, will post on a few minutes

 

Thanks again

 

Gilly5001

 

Oh the papers are dated the 17th Jan so a little while to go yet

[gilly5001]

please find attached the assignment letter from mbna

assignment from mbna.pdf

[pt2537]

Thanks Gilly5001

 

this gives me something to work with.

 

i will have a good think over the next day or so and see what i can come up with for a defence

[gilly5001]

thanku so much

 

just want to check somethign though. i sent a letter to bc stating that if he takin me to court want all evidence etc. should i have sent a copy of this to the court or wait and use it as defnce

didnt want to be doing nothign if there is something i could be doing

 

thanks again

 

Gilly

[pt2537]

Gilly, don't send that to the court, there is little point at this stage

 

wait and see if they comply,

 

if they do then let us know immediately,if they dont then around 5 days before your defence is due give us a shout, just to remind us, all u need to do is post on the thread and i will get an email notification

 

its a waiting game for the next few days

 

regards

paul

[gilly5001]

Hi there

have an update

have received an update today from Bryan Carter that reads

We thankyou for your letter dated the 21st January 2008. We do not agree that you are entitled to all of the documentation which you ahve requested or that you need it in order to prepare your defence to this claim.

We have requested a breakdown of the account and copy of the original credit agreement from our client and will forward these to you as soon as they are to hand and, in the meantime, we confirm that you may have a general extension of time for service of your defence.

 

Hope you can shed some light on this,

as this is happening I am still payin them £10 per week so they said if i did that they wouldnt go ahead with ccj anyway

[Justforfun]

bump

[Edz11]

BC aren't the Court and can't give any general extension of anything.

 

No defence and they'll apply for a default judgment (very sneaky). I bet you don't have it in writing that the Cout action will be stopped if you pay the £10 a week. "we would never say that M'lud".

 

You need to write back to them and say that you note;

 

1) The contents of their letter of xxth February.

2) That they are refusing to comply in full with the request you have made under CPR18.

3) That they are at present unable to substantiate the partculars of claim.

 

Say that their refusal to supply the information will add costs and delays to the case and will mean that you will only be able to submit a partial defence. As a consequence you will ask the Court to consider making an order for full disclosure and compliance with your CPR 18 request using its case management powers when you return your completed allocation questionaire.

[gilly5001]

ok thanks thats great , will get onto that now

[gilly5001]

hi

I sent the letter last week as advised and have heard nothing from bc surprise surprise!

I am posting now as it is approachign the date when need to submit a defence and wondered if someone can help me Please!!!

Thanks

Gilly

[gilly5001]

HI

Is there anybody who can help me please with my defence. The papers are dated the 17th January so will have been deemed served on the 22nd i think. That gives me until Tuesday I believe to defend or have a ccj registered against me!!

Please please help. I will need to send everything off to the court by tomorrow or monday at the very latest.

I was told to wait and then post back with a few days to go but I havent had any posts

 

Thanks

Gilly

[tomterm8]

DEFENCE

 

 

 

 

 

 

PROCEDURAL ISSUES IN RELATION TO CLAIM

 

1. I object to the claimants’ particulars of claim, in so far the has claimant failed to abide by the pre-action protocols of the civil procedure rules, in so far as they failed to serve on me a properly formatted notice of legal action. The claimant failed to specify adequate details to investigate their claims, or to attach all documents upon which they found their claims.

 

2. In particular I apologise to the court that this defence is poorly particularised since the claimant has refused or failed to provide crucial evidence in relation to this claim. This evidence includes statement of account, copies of the deed of assignment, copies of any default notice, and / or any proof whatsoever despite a request for this information sent by me on DATE. The claimant refused to provide this information in a letter dated DATE.

 

3. I further object to the claimants’ particulars of claims, in so far as they 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;

 

3.1 The Particulars of Claim do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

3.2 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 servedattached to the claim form or prior to the issue of the claim form as required by the Pre-Action Protocols.

 

3.3. I therefore respectfully request that the court grant me permission to amend this defence when the Claimant provides the information to substantiate its case.

 

4. Further I put the claimant to strict proof that the amount owing on this account is as alleged

 

Improperly executed agreement

 

5. On DATE, I sent by recorded delivery a request under the consumer credit act 1974 for a copy of the credit agreement, which the claimant replied to with a document which the Claimant has stated is the credit agreements in respect of the debt, a claim to which they are bound by virtue of s172 of the consumer credit act 1974.

 

6 It appears that the alleged agreement provided is an application form, contingent on future acts and not binding on either party until those acts have been completed. As such, it is a pre-contractual document and is an agreement to enter into a prospective agreement. Such agreements are void under s59(1) of the consumer credit act 1974, and may be subject to further negotiation before forming a binding credit agreement.

 

7. The agreement appears to be a cancellable agreement, and as such required both customer and creditors’ signatures to be dated as follows

 

The signature of the said document shall be made in the following

 

manner-

 

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the

 

case of a partnership or an unincorporated body of persons, in the

 

space in the document indicated for the purpose, and, subject to sub·

 

paragraph (e) below, the date of the signature shall be inserted in the

 

space in the document indicated for the purpose;

 

(b) by the creditor or owner, or by a person on his behalf, outside any

 

signature box in which the debtor or hirer may sign and, subject to

 

sub-paragraph (e) below, the date of the signature shall be inserted

 

outside any such signature box;

 

(e) in the case of a regulated agreement which is not a cancellable

 

agreement, the date on which the unexecuted agreement becomes an

 

executed agreement may be inserted in the document and in such a

 

case any other date specified in paragraphs (a) and (b) above need not

 

be inserted; and

8. It is respectfully submitted that, for the reasons discussed above these agreements are improperly executed, and are also not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. Each agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

9 Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the credit agreement does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6. )

 

10. In the event that the court decides that it is entitled to enforce these agreements, despite the improper format, it is noted that no evidence has been submitted that any default notice has been served and that the claimant is entitled to recover any money owing under the account.

 

Unlawful Charges

 

11. It is my belief that during the period in which the Account was operated the original creditor debited numerous charges to the Account in respect of purported breaches of contract on the part of the defendant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

12. The defendant contends that:

 

12.1 The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

12.2 The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

12.3 Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

13. 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. If the claimant sent a default notice that includes unlawful penalty charges, or fees unlawfully debited in respect of the account, any default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt according to s89(1) of the consumer credit act 1974.

 

 

Failure to serve a default notice

 

14. I put the claimant to strict proof that a default notice has been served which is accurate, and conforms to law.

 

15. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended (“Default Regulations”)

 

22. Reg (2) of the Default Regulations states the requirement of a default notice

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

 

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

 

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

16. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

 

17. With regard to the default notice, I would quote paragraph 3 of schedule 2:

 

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

 

fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

 

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

18. 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.

 

19. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph's 3.1, 3.2 and 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.

[Edz11]

Tomterm - I'd put this aside till weekend too.

 

Para 10 - as there IS a notice of assignment would it not be best to remove the first part?

 

Para 19 refers to paras 4 & 5. Should that not say paras 3.1 and 3.2 and 13.0?

[tomterm8]

Hi, Edz11, I've made the corrections you've suggested.

 

You can tell that someone pointed me to the thread at 9pm;) I like to put defences up a few days early so the OP can edited them as appropriate.

[gilly5001]

Thankyou all so much, am I correct in thinking I can submit this online to the court?

Thanks again though for all your help

There is no way i could have defended this without everybodies help on here! i just h ope the court listens!

Thanks

Gilly

[gilly5001]

If the court agrees to a stay, what happen then? do i wait for bc to send me the information requested??

[gilly5001]

Hi

This ugly business has raised it's head with a letter from another dca stating claim ref etc and demanding payment. What can they do with this claim stayed? Can they pursue? I'm not sure What I should do in return if anything

Thanks

[sleepingdog]

Hi gilly5001 , the new DCA wouldn't be Fredricksons would it ? . If the claim is stayed then the claimant would need to prove to the Judge that new material has come to light in order for the claim to go ahead.

sleepingdog