eversheds/arrow global advice

[worried36]

thanks it would be really helpful. I must admit that their letters do sound scary as I am a bit of a chicken when it comes to legal letters and am easily confused!!(very few brain cells left after having 5 children!) Any help is really valued thanks again:)

[mrmarmite]

Docman IS correct about the 12 WORKING days, if sent by recorded you say 12+2 which covers posting time. after the 14th day they are in default and cannot LEGALLY ask/demand ANY payments from you, AFTER a further 30 CALENDAR days it becomes un-enforceable in court under s127(3) but as you not got a month hopefully the 12 working days will be fine by the judge just make sure you print a copy of the CCA request off, copy the recorded delivery slip and go to royal mail web site to get proof of delivery (might not be able to get a signature) BUT it will say it delivered from our XXXXX offices on XX-XX-XXX, print it off and take it with you to court and hand it over

[mrmarmite]

and as for their THREAT letters they are ment to be like that to intimidate you into phoning them. just ignore it. us Caggers LOVE getting threat letters through our letter box (grump I not had one for 3 weeks now) :D

[worried36]

lol mr m you can always have some of my threatening letters!!!! Well I'll keep you updated. Thanks everyone:)

[mrmarmite]

i can do responses for if you wish. click on the little blue man under Mrmarmite and e-mail me the letter

 

PLEASE make sure you remove ALL personal information. letter that will be sent back will be in word document, you just gotta fill your details in ands post it

[worried36]

Thats very kind. Thanks for all your help so far I will keep you posted:)

[mrmarmite]

ok, just shout if something comes up

[Docman]

I said earlier that I would post a draft dfence if you do not receive a CCA response. Here it is based on the advice I've received from other CAGers. Sorry, I can't remeber who originally drafted it but whoever you are, many thanks from me.

 

Remember, I'm not a lawyer, just another CAGer. If any one can improve or has a comment, please contribute.

[Docman]

In the xxxxxxxx County Court

Claim number

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

 

 

and

 

 

 

XXXXXXXXX - 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 claim discloses 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, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

6. 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 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 list of charges applied to the account.

7. To date the claimant has ignored my request under the Civil Procedure Rules, 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

8. It is neither admitted nor 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.

9.Notwithstanding point 8, 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)

 

10. 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)

 

11. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses 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

 

12. 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.

 

13. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 6 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.

 

14. In addition I respectfully request that the court consider ordering this agreement unenforceable pursuant to s127 (3) of the Consumer Credit Act 1974 for the reasons previously stated .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,xxxxx, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

[mrmarmite]

lmao Docman where is it then

[worried36]

Hi everyone I need some advice on what to do next. I have heard nothing from eversheds and their 14days is up. Do I now have to file a defence with the court. Should I just copy the letter docman sent me on to the court website or should I also tell them about the cca request and the cpr 18 letters and that I have had no response other than the letter I recieved on the 27th feb. Should I also contact eversheds again or just deal with the court. I know I sound quite stupid but I am easily confused!!!Many thanks:-)

[Docman]

Hi

Well, if they haven't sent anything, you will have to file a defence. Fill in the dates in the draft I put on post #34 above. It deals with the CCA request in paragraph 5 and with the CPR 18 letter in paragraph 6.

When you have inserted the dates, copy the defence onto the court form. Sorry, I don’t know hoe much space the court allows to put in a defence electronically. You might find it easier to save the defence as a document and then attach the document to the response to the court. Can any other cagger help on this point??

[worried36]

hi all i've copied docmans defence onto the court form but am unsure about paragraph 10 do i need to edit anything here and what date do i put in on paragraph 14 sorry if i sound really thick!!! also do i add anything else or will that be enough. please help:confused:

[B3rty]

10 is pointing out the legal consequences of not producing a default notice in the correct format and your rights concerning showing a default in your credit reports.

 

14 is saying that the amendments to the act in 2006 are not retrospective so you need to put in the date of the aledged agreement to show this is before 2006 and the original condidtions apply.

 

The MCOL will allow 8000 charactors so this defence should fit onto that for submition

[worried36]

I am unsure what the debt is for so should i leave the date free even though all credit cards were taken out before 2006 and do i just have the letter as my defence or should i put anything else sorry if i am repeating myself but i am quite stupid!!!!

[B3rty]

I would just add the words " prior to this date"

[Docman]

Hi there

Keep 14 in. The reason is that some 'bright' solicitors are telling judges that the Consumer Credit Act 2006 has repealed the 1974 Act and in particular S 127 (3). This is the section that says the court cannot enforce an agreement without a valid CCA. The solicitors are not lying (as if they would!). The new Act has repealed S 127(3) but this does not affect apply to agreements entered into before the 2006 Act came into force, a point that the solicitors 'forget' to tell the judge. A lot of judges in county court are generalists who do not have a detailed knowledge of consumer credit legislation and can be led by solicitors to the wrong conclusion. If you put the point into your defence, not only does it mean the judge is aware but it also alerts the solicitor that YOU know what you are talking about (even if you feel you don't), so that the solicitor probably won't try anything.

[worried36]

Thanks for all the advice is there anything else i need to put on the defence form and what happens when i submit the form. Many thanks

[worried36]

Thanks for all the advice is there anything else i need to put on the defence form and what happens when i submit the form. Many thanks

[worried36]

Hi all I have just submitted my defence online any ideas what happens next? thanks for everyones help so far couldn't have got this far without you!

[Docman]

Now you wait but see if you can confirm that the court has logged your defence.

 

The court should arrange to transfer the case to your local county court, who will issue an 'Allocation Questionnaire' or AQ to you and Arrow. This is a document that both sides have to complete in order to allow the judge to decide how to treat the case. If you don't send the AQ back to the court, the judge can strike out your defence and Arrow can then go for judgement. So, when you get the AQ, come back and you'll find advice form CAGers on how to complete the form.

[worried36]

ok thanks for that docman will keep you posted many thanks again:)

[citizenB]

Is there an update on this please ?