HFC/Weightmans Advice

[mazel01]

Rory, when will you post the defence on the thread for me?

[rory32]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxx- Defendant

 

 

 

Defence

 

 

 

1. 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.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. 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;

 

a) 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.

 

b) 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.

 

c) 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.

 

4. Consequently, it is proving difficult to plead to the particulars as matters stand

 

5. Further to the case, on xx/xx/2008 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.

 

6. To Date the claimant has inot complied with my request under the CPR (letter from Weightmansattached) 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.

 

7. 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 assess if the documentation the claimant claims 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) 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

 

 

 

8. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 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

 

9. Notwithstanding points 7 and 8, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

10. The claimant is therefore put to strict proof that such a compliant document exists

 

 

11. 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.

 

12. Notwithstanding point 11, 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)

 

13. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

14. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

15. 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.

 

16. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 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.

 

17. 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, believe the above statement to be true and factual

 

 

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

 

Date

[rory32]

I have left out anything to do with PPI and charges etc as at the moment we just want to make the point that without supplying the documents you have requested the claim shouldn't continue. Attach a copy of the CPR letter that you sent and a copy of their response and send a copy of the defence to the court and Weightmans.

[mazel01]

I have left out anything to do with PPI and charges etc as at the moment

 

Thanks Rory....although this has been left out now, can it be added later on

[rory32]

Yes.

[mazel01]

Do I post the defence to the court & Weightmans or do I complete the defence online?

[rory32]

You can do either but I would suggest that you post it as MCOL limits the length of your defence.

[mazel01]

Thanks again Rory, I will post it GND tomorrow:)

[mazel01]

I have been ill in bed all week & haven't been able to get to the post office to send the defence to the court. Please could someone tell me whats the best thing to do:

 

The court said that my defence had to be in by Monday June 2nd. Should I try & complete it online with MCOL or send it tomorrow GNDD. If I send it GNDD does it need to be there for Saturday morning or Monday 9am. I don't think that the courts will be there on a saturday morning. If it gets there by 9am Monday is that within the timescale that the court mentioned.

[rory32]

Send it as MCOL can take a few days to process it. The court won't be open for business on a Saturday but I would give the court a phone to see if anyone will be there to sign for it (there should be someone there even on a Saturday).

[mazel01]

Thanks Rory. If I send it GNDD to get there Monday 9am, would that still be within the courts timescale. The guy I spoke to the other week at the courts, said it had to be in by June 1st (sunday), but because it fell on a weekend it would be June 2nd (Monday)......does this mean by close of business that day?

[rory32]

....does this mean by close of business that day?

Yes but ideally you want it in as soon as possible on the Monday so that it is processed. So send it for Monday 9am.

[mazel01]

I will phone the courts in the morning to see whether someone will be there to sign for it on saturday morning.

 

Finally, do I just print out the defence or does it need to go on a particular form before its sent to the courts?

[rory32]

Finally, do I just print out the defence or does it need to go on a particular form before its sent to the courts?

It should go on the N9B Form you got as part of your claim pack. If there is not enough room you can continue on a seperate piece of paper. Make sure that the claim number is clearly shown on it http://www.hmcourts-service.gov.uk/news/forms/docs/n9b_0406.pdf

[mazel01]

In the xxxxxxxx County Court

Claim number

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxx- Defendant

 

 

 

Defence

 

Do I need to include this part when I am completing the N9B?

[mazel01]

Sorry, just noticed I fill that in at the top of the N9B form.....I presume that I don't need to add it in the defence section as well

[rory32]

No you don't need to add it.

[mazel01]

Finally, what is the normal timescale once my defence has been received by the courts.....basically before it would be in the courts?....my wife won a holiday for us months ago & am due to go in approx 6/7 weeks. Do you think that it will be after that time?

[rory32]

You may receive an N150 Allocation Questionnaire in the next week or so. There would normally be a 14 days to complete this and then it would take 2 to 4 weeks for allocation to be dealt with by Judge and a hearing date set. The hearing date can be a few weeks away or a couple of months depending on the workload of the court.

[mazel01]

5. Further to the case, on xx/xx/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules

 

Rory, I am just typing out the defence, is it the date on my letter or the date they signed for it?

[rory32]

The date on your letter.

[mazel01]

I rang the court this morning & they said that my defence had to be in by close of business Monday. This afternoon I posted it GNDD for Monday 9am.....it cost £10.30 wow.....

[rory32]

Bloody expensive I know. It's actually gone up in the last year as it used to be under a tenner. It's about half the price if you had got GNDD by 1pm but with deadlines so tight with you having been ill you want to make sure that they've got it in good time.

[mazel01]

Just checked the Royal Mail website & it says that my letter was delivered to the court today, however it doesnt say what time!

Just logged into MCOL & it doesn't mention that my defence was received today.....does it normally take a few days for it to change status online?

[rory32]

MCOL does take a little time to update (it can take a few days). Don't worry about it - the defence is in on time and that's what matters.