wybmadiity vs Bryan Carter

[wybmadiity]

Bumping this up........I would be very grateful if someone could help with my defence as offered. Panicking slightly as this needs to be submitted by 4pm tomorrow!!!

 

Many thanks

 

Wyb

[wybmadiity]

Thanks Tom.

 

1. Sent CCA request recorded delivery 28 Nov, signed for by D Carter 29 Nov.

 

2. No response received.

 

3. Particulars of claim - "the claimant claims £181.00, such sum being part of a debt due under agreement no. ######## whereby the defendant agreed to pay the claimant £545.15.

 

For the avoidance of doubt in making this claim for a part of the debt the claimant does not waive any rights as to the balance of the debt, which the defendant continues to owe to the claimant under the agreement. The claimant reserves the right to make further claim for such sums of the debt as remain outstanding"

 

4. No payment has ever been made by me regarding this debt.

 

5. I have no idea - spoke to National Debtline when I received judgment and they said possibly a catalogue. I have no credit agreements apart from credit card and mobile which are paid in full every month. Suspect it may be something ex did in my name, as have since found a couple of unpaid catalogue debts on my credit report in my name that I never applied for.

 

6. No credit agreement, no response to CCA letter.

 

 

Time is running out and I need to get this to court before 4 :o

 

Many thanks

[tomterm8]

did you recieve any notice of intended legal action before the case?

[wybmadiity]

Nothing at all. The only correspondence was a letter from Bryan Carter AFTER judgment still requesting the full amount owing (545.15 plus their fees I believe)

[wybmadiity]

Actually I didn't even receive the original claim or I would have defended it then, though I live in a remote area and post can be erratic! The first I knew of it was when I received judgment by default.

[tomterm8]

Hrm... so are we applying to set aside the judgement, then?

[wybmadiity]

No. Sorry Tom, thought you realised. I successfully had the judgment set aside 2 weeks ago). But the court decided of their own volition to reissue the claim in order I can enter a defence, which is due in by 4pm today

[tomterm8]

DEFENCE

 

 

 

 

 

 

PROCEDURAL ISSUES IN RELATION TO CLAIM

 

1. I object to the claimants’ particulars of claim, in so far as they breach my convention rights under the human rights act 1998 sixth protocol that I should have a fair and speedy trial, since

 

2.1 The claimant expressly states that they have brought an action against me while reserving the right to take further legal action against me on the basis of the same facts for monies allegedly owing at the time their particulars of claim were filed and,

 

2.2 the claimant implies that they intend to take numerous and vexatious actions against me in the future, in contravention of the overriding objective, and on the basis of the same facts for further monies allegedly owing at the time their particulars of claim were filed subjecting me to substantial undue expense, inconvenience and depriving me of my right to a speedy trial.

 

 

2.3 By retaining the right to launch multiple actions in respect of the same cause of action, the claimant is attempting to breach s35 of the County Courts Act 1984, which states

“

 

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.”

 

2.4 The 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.

 

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 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 other matters necessary to substantiate the claimant’s claim.

 

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

 

3.3 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.

 

Unlawful Charges

 

4. It is my belief that during the period in which the Account was operated the claimant and/or original creditor debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant 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.

 

5. The defendant contends that:

 

5.1 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.

 

5.2 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.

 

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

 

6. 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 provide a copy of the executed agreement on request

 

7. 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. The claimant has failed to provide a copy of this within the 12 days prescribed by parliament. As a consequence, the agreement is rendered unenforceable via s77-79 until such time as the Claimant rectifies this default

 

 

Failure to serve a default notice

 

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

 

9. 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.

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

 

11. 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.

Failure to properly serve a notice of Assignment

 

12 It is noted that the claimants state that a notice of assignment according in all respects with s136 of the Law of Property Act 1925 “was sent to the claimant”.

 

13. I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

14 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

15. The requirements for service via the post are

 

196.

 

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in

a registered letter

addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [

F1

by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. [emphasis mine]

 

16. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

 

 

17. 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.

 

18. Alternatively, I respectfully request a stay in proceedings until such time as the claimant provides the information outlined in paragraph's 3 and 4 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.

 

I believe the statements in this defence to be true,

 

YOUR NAME

[tomterm8]

make sure it is the truth... and add / change anything so you are satisfied with it.

 

Also, make sure it only has two fonts... CAG tends to change the fonts of long paste jobs

[wybmadiity]

Eeeeeek all looks a bit confusing, will try to pick through it. Could I ask what is CP part 16? And should I number the sections as you have, or just copy and paste relevant paragraphs?

 

Thanks again

[tomterm8]

CPR 16 is PART 16 - STATEMENTS OF CASE

 

16.4 (1)Particulars of claim must include –

(a)a concise statement of the facts on which the claimant relies;

(b)if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

©if the claimant is seeking aggravated damages (GL) or exemplary damages (GL) , a statement to that effect and his grounds for claiming them;

(d)if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and

(e)such other matters as may be set out in a practice direction.

(2)If the claimant is seeking interest he must –

(a)state whether he is doing so –

(i)under the terms of a contract;

(ii)under an enactment and if so which; or

(iii)on some other basis and if so what that basis is; and

(b)if the claim is for a specified amount of money, state –

(i)the percentage rate at which interest is claimed;

(ii)the date from which it is claimed;

(iii)the date to which it is calculated, which must not be later than the date on which the claim form is issued;

(iv)the total amount of interest claimed to the date of calculation; and

(v)the daily rate at which interest accrues after that date.

 

(Part 22 requires particulars of claim to be verified by a statement of truth)

[tomterm8]

Obviously, DON'T sign the claim form, type your name. That's entirely legitimate. if you move stuff around, then make all the numbers be consecutive, LOL;)

[wybmadiity]

Brilliant, thanks so much for the help. Will let you know how I get on!!

[wybmadiity]

Tom, I owe you a HUGE thank you!!

 

Received today from Mr Carter a Notice of Discontinuance

 

Well actually, a letter saying please find your notice attached....and someone else's notice!

 

Do I need to do anything now, or is the end of it. Might it be assigned to another DCA by original creditor (whoever that might be).

 

Thanks again for all the help

 

Wyb

[diskmandave]

Well done!

 

& way to go Tom! Brilliant stuff as usual!

[tomterm8]

Erm, I would call the court, explain the situation and ask if the court has recieved a notice of discontinuance for your case.

 

Worth checking your case has actually been discontinued (considering they sent you the wrong notice)

[ODC]

Well done Tom. Yet again Mr Carter has been shown up for what he is.

 

Im sure the person who's notice you received would be pleased to know that Mr Carter was sending out his/her private financial information

[wybmadiity]

Despite case having been transferred to my local county court, they state in their letter thewy have sent the discontinuance to Northampton. I have checked with both courts today but neither have yet received anything.

 

Also my local court tell me that following my defence, the file is still with the judge awaiting a decision as to whether the claim should be struck out altogether. What would be the difference between this and a discontinuance? And in either case, is there any way the original creditor could reassign the debt and pursue me again?

 

ODC I had thought of contacting the lady named on the document I received, but all I have is a name and court reference number. Or should I just refer it straight to the Data Protection Registrar

 

Thanks everyone

[The Milky Bar Kid]

Hi

 

I am in dispute with Nationwide for Unfair Bank Charges. Originally £9 overdrawn and now at £276. Ban k wrote to me in Dec 07 and said in Light of the Test Case and the OFT They would put this on hold and I agreed that was fine. However after Xmas I have started receiving threatening calls ans letters from Fredrickson International and now I have received a letter from the well known Bryan Carter Solicitors on headed paper with the De Havilland Drive address.

 

Last year I successfuuly claimed back £600 in charges from the abbey.

 

Can anyone help !! I already have sen the correct letter regarding Bank charges to all 3

 

Cheers

[42man]

Milky Bar kid you need to start your own thread on this....

[tomterm8]

Despite case having been transferred to my local county court, they state in their letter thewy have sent the discontinuance to Northampton. I have checked with both courts today but neither have yet received anything.

 

Also my local court tell me that following my defence, the file is still with the judge awaiting a decision as to whether the claim should be struck out altogether. What would be the difference between this and a discontinuance?

 

in practice, not very much difference.

And in either case, is there any way the original creditor could reassign the debt and pursue me again?

 

Only if they had new evidence.

ODC I had thought of contacting the lady named on the document I received, but all I have is a name and court reference number. Or should I just refer it straight to the Data Protection Registrar

 

You would need to complain to the ICO.

Thanks everyone

..

[wybmadiity]

Thanks yet again Tom, think I feel a complaint to the ICO looming