eversheds/arrow global advice

[Docman]

Hi Worried

 

Yes you should respond to the county court at www.moneyclaim.gov.uk . You will need your claim number and the password that is on the N1 claim form you have received. You will have 14 days to do this but I suggest you do it eariler rather than later.

 

If you put down that you dispute the claim in full, you will have 28 days from the day of service (ie today) to lodge a defence. f you can post up the Particulars of Claim without any identifying personal details, it will be easier to advise on a defence. Don't worry about scanning the document, just type out the main details from the Particulars of Claim section.

[Docman]

Well said Mr M.

[Docman]

I should also add that Mr M's letter is what is known as a 'CPR 18.1' from section 18.1 of the Civil Procedures Rules. The Court will expect a solicitor acting for a creditor do supply everything requested before the court has to act, ie within the 14 days you set. If they don't, you will have to file a defence ( don't worry about that just yet, help will be available). The court will then order the solicitors to produce the documents, or it can strike out the claim.

As SG said, if it gets to a judge looking at the case, Evers..ts will send a local 'rent-a-solicitor' to court who probably won't know much or have documents.

Hang on in there and smile. It may seem hard now, but you will get through this!

[Docman]

Evers###s have either ignored your CCA request or they are playing 'chicken' with you - waiting to see who will give in first.

 

I suspect that it is more a case that Evers###s left hand doesn't know the right hand has got a CCA request and so LH has carried on with the court proceedings. LH hasn't read the file properly and hasn't realised that 22 March is in the middle of the Easter break when the court will be closed from 20 to 25 March.

 

You will need to be careful with the dates here and be ready to submit a defence at short notice. Your CCA request was received by them on 12 Feb. I think they have twelve WORKING days to comply but I am happy to be corrected on that point. If I am correct, and if they haven't supplied the copy agreement already, they are in default and cannot enforce any claim. If nothing else comes from them, this will be your first defence. You can't defend on any other grounds frankly, as you don't know anything about the debt.

 

Having sent the CPR 18.1 letter, Evers###s have 14 CALENDAR days after receipt to respond. Since they must have received your request by 27 Feb, they could claim to have until 12 March to respond with the documents. If then they supply a copy of the agreement, they would have met the requirement under the Consumer Credit Act and can then go ahead with the case. If this happens, your defence will have to be based on the validitity of the documents supplied.

 

I'll dig out a draft defence for you to cover the first scenario and post up shortly for comment.

 

I'm sorry if this sounds complicated but it isn't really. Unfortunately, DCAs pray on people getting all upset and agreeing to the DCAs demands just to avoid court. Don't fall into the trap and get upset.

[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

[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??

[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.

[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.