Cl Finance/howardchoen Please Help**WON**

[pt2537]

Hi

 

when does the defence need to be with the court, the latest that the court must have it?

 

regards

 

paul

[pt2537]

If you are actually going to go for the CC then i would actually add a section 142 (1) Declaration as part of the CC too, you have nothing to lose on that

 

the numbering of the defence needs looking at as it doesnt run true and also the references to paragraphs need s attention

[pt2537]

Ok well if you take a look around the DCA success section of this forum you will probably find that most of the threads entitled **WON** the OPs were feeling at some points exactly like you do now.

 

so you have a choice, roll over and die and let them win with their crap claim or FIGHT back

 

now i can help you if you wanna fight but i wont help you roll over and give up

 

it is difficult to comprehend at first, but you need to do some reading of the other threads to see how these things progress, there are some very useful threads in my signature that you could read, this one is very helpful http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

with the Consumer credit leigislation it is fairly straight forward, a credit agreement must have certain terms in it, if they arent then the court cant enforce it and further more if they cant even produce the agreement they cant do diddly squat

 

to be honest you need to address the issue that they are claiming a overdraft but infact it is a credit card a little better

 

but dont worry too much about that now

 

i will have a glance over it this evening and redraft it for you

 

Now you need to decide if you want to counterclaim as there is a fee payable for a counter claim so you would have to pay if you do most likely. i cant remember what the fee is off the top of my head but if you call the court they will tell you

[pt2537]

please help me i really do want to win what is a counter claim for ?

well i cant guarantee that you will win but i can say we will give it our best shot thats for sure

 

A counterclaim is basically a claim against the claimant its a retaliatory claim if you like,

[pt2537]

Hi,

 

No sorry i didnt get a chance last night, a few things came up and i couldnt get around to it

 

i will do my best to have a look today

[pt2537]

Hi, can i just check, to save me going back over the whole thread, what requests for information have you made,

 

im assuming that you would have filed a CPR request from their response but did you file a Data protection SAR and also a Consumer Credit agreement request (CCA) ?

 

it would be helpful if you could confirm this

[pt2537]

Thanks for that,

 

Can i also ask have you ever received notice of assignment of this account? and can i just check , in theior claim they state that the account number is xxxxxxxxx but its an overdraft.

 

now then do you have a bank account that is overdrawn? i have to ask as they could apply to amend their POCs later so if you dont have an account which is in trouble we can kill this stone dead and ask the court to throw their ass out of court as it stands their claim is pooched and not worth a to$$

[pt2537]

ok so in that case, they have already brought the claim against the Credit Card yes? so was the credit card number on that claim the same as in this claim?

 

if it is theyre stuffed

[pt2537]

when i received the letter of assignment, it stated it was a credit card with the credit card no and the credit card balance but in the poc it was stated as an overdraft with the credit card balance and credit card number.

this is the only claim i have received with the credit card number on it

 

thanks

 

oh.....

 

from skimming over the thread it looked as if they had brought 2 claims against you so i was wondering what the other claim was for? and if it had any relevence to this claim

 

i just want to make sure we dont miss anything

[pt2537]

no problems,

 

did you recieve any letter telling you they were going to take legal action against you for this debt? they may have headed it a Letter Before Action or something along those lines

[pt2537]

no letter before action been recieved

 

Oh you dont know how happy youve just made me with that comment, time to fillet their donkey:)

 

basically you cannot plead to this claim as it stands as you have no idea what you are expected to plead to, the account number relates to a credit card but they claim its a overdraft and they need to provide supporting evidence atleast

 

 

i am working on a defence and hope to have it posted by this afternoon

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. I am embarrassed to plead to the claimants statement of case as matters stand as they state they are bringing this claim under a overdraft on a current account however the account number and figures claimed do not relate to any bank account which I hold.

 

3. The account number stated in the claimants statement of case relates exactly to a credit card agreement with XXXXX Bank and consequently is causing me great confusion as I do not know what cause of action they are reliant upon when bringing this claim.in addition, the claimant should be aware that credit card numbers are 16 digits long and bank accounts are 8 digits. this is standard format across the banking industry and does not change no matter which financial institution

 

4. The claimant's particulars of claim are very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16 in particular the claimants statement of case does not conform to CPR 16.4. No particulars are offered as to how the amount claimed is calculated nor is there a copy of a default notice annexed to the particulars of claim and most importantly, where the claimant is bringing this claim which is founded upon a written contract, namely a credit agreement they should serve a copy of that agreement with the particulars of claim

 

5. Further more, the claimant cite that their right to bring this action is based upon an assignment. No copy of the Notice of Assignment has been annexed to the claim form. The defendant notes to have a right of action in their name the claimant would need to serve a Notice of Assignment as laid out in Section 136 of the Law of Property Act 1925 and that section 196 of the same act sets out how a Notice of Assignment must be served.

 

6. Therefore pursuant to point 5, I require the claimant to provide Notice of Assignment and also proof of service of the said Notice pursuant to S196 Law of Property Act 1925 and put them to strict proof that such documents exist and were served correctly and also the defendant require the deed of assignment be provided to the court for inspection

 

7. Consequently where the claimant has failed to provide the written documents that they rely upon and does not even appear to know what cause of action the claim is based upon, I am unable to admit or deny their claims and accordingly I put them to strict proof thereof.

 

8. On xx/xx/200 in an attempt to clarify the basis of this claim and what grounds the claimant was bringing this action I wrote to the claimant requesting that they supply certain documents, which their claim was based upon. The request was for supporting documents and was inter alia: - a copy of the written agreement or contract, a copy of statements or any other document showing how the amount claimed was accrued, a copy of the Notice of Assignment, a copy of the Default notice and formal demand which must be served under the Consumer Credit Act 1974. A copy of the letter is annexed to this defence

 

9. I requested that this information be supplied within 14 days of receipt of my letter, which was received by the claimant on xxxxxxx. It is not unreasonable to expect the claimant to be able to supply such information within 14 days considering that the claimant must surely be in possession of such documents as they have committed to bringing this claim before the court. It is surely inconceivable that the claimant being experienced in these kind of litigation matters could bring such an action without the key documents which they would need to prove their case

 

10. The claimant failed to supply the requested information within the requested time frame and as a result they have made it extremely difficult to know what grounds the claimant brings this case, as all I have to work with is their vague particulars of claim and nothing else. This places me at an extreme disadvantage since I am a litigant in person and this surely prejudices my ability to offer any reasoned defence to this claim

 

11. Notwithstanding matters already pleaded, No letter before action was received from the claimant. I note that the Civil Procedure Rules Pre-action Protocols Para 4.3 sets out the requirements of a letter before action and its minimum contents. Since the claimant failed to serve the letter before action I was unaware of the claim until the court forms were served upon me. Again this places me at a distinct disadvantage and has potential to prejudice my ability to raise a full defence to this action

 

12. After consideration of the matters pleaded and the claimants vague particulars of claim I request that the court strike out the claimants statement of case pursuant to CPR 3.4 (2)(a) &© for failing to comply with the CPR pre-action protocols, failing to comply with the requirements of Part 16 and practice Direction 16 insofar as they have failed to supply any supporting documents and that the statement of claim is too vague and insufficiently particularised and offer no real prospect of success as matters stand

 

13. Should the court decide not to strike out the claimants case, it is requested that the court order the claimant to provide documents in support of their claim to allow me to ascertain exactly what grounds they are bringing this claim and exactly what the basis of this claim is be it a credit card, loan or bank account because as it stands it is extremely unclear

 

14. Should it be the case that the claimant is confused as suggested and is bringing this action for a credit card or loan then the claimant must supply a copy of the credit agreement pursuant to the Consumer Credit Act 1974 (CCA) the CCA sets out that a credit agreement must contain certain minimum terms and must be signed by the debtor and creditor before a court can issue an enforcement order. The minimum terms referred to are found within the Consumer Credit Agreements Regulations 1983 SI 1983/ 1553 within schedule 6 column 2 of the said regulations. Failure for the agreement to contain these terms will render it unenforceable by virtue of section 127 (3) of the CCA and I note this issue has been addressed in various cases including the House of Lords in Wilson & first County Trust [2003] UKHL 40 where it was established if a credit agreement is not signed by the debtor and/or it fails to contain the prescribed terms, it cannot be enforced even by the courts and this is still relevant as the Consumer Credit Act 2006 does not repeal section 127(3) of the 1974 act where the agreement was made before 6th April 2007 . This is contained within schedule 3 of the CCA 2006 at paragraph 11

 

15. It therefore stands to reason that if the claim is based upon a credit agreement and the claimant does indeed amend its statement of claim, the claimant must supply a copy of the agreement and any other documents referred to within it, additionally they must also provide a default notice pursuant to section 87(1) of the CCA 1974 in the correct form containing the required terms as per the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

16. Should the claimant make an application to amend their particulars of claim and such application be granted, I respectfully request that the court order the claimant to provide the relevant documents supporting their claim and allow me permission to amend the defence accordingly in reply

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

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

 

Date

 

Ok there we go, basically there is no real need to mess around trying to refer to the consumer credit act etc at the mo, they have not supplied a sufficiently particularised claim nor have they supplied any supporting documents so you cannot asnwer such a vague claim and i think that defence sets it out clearly

 

any questions please feel free to ask

[pt2537]

well, the ball is in their court now, and that letter is very very useful as it confirms no agreement so they are stuffed IMHO as the court cannot make an enforcement order

[pt2537]

hi

 

since receivng a letter from the court on the 10th april saying they have recieved my defence and sent it to the sols, what happens next and should it really take this long?

 

Hi there,

 

they have a total of 33 days to decide if they are going to proceed,

 

it may be worth giving the court a call to check on the progress of the claim

[pt2537]

post just arrived with two letters from h.cohen saying

 

We refeer to the above matter and in paticular the defence you have recently filed.

we would ask you to find enclosed by way of service upon you the clamiants notice of discontinuance of proceedings herein. The original has been lodged at court.

 

so what do i do now contact them and make an amount i can afford each month or wait for them to come and ask me

 

thanks

 

Hi there,

 

Notice of Discontinuance means in essence you have WON CONGRATULATIONS

 

its game over, they have pulled out of the case, so you dont need to do diddly as they cannot restart the case against you without leave from the court as the Civil Procedure Rules states that they cannot bring another claim on the same facts without premission of the court and since they have botched this case so much, its unlikely that the court would give them leave to restart the claim

 

if any thing, i would be considering any costs you have incurred and mnaking an application to the court for an award of costs pursuant to the CPR

[pt2537]

Exactly what SG1 says;)

 

if anything they owe you now:)

 

this is taken from the Civil Procedure Rules

 

Liability for costs 38.6 (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where right to costs arises on discontinuance)

 

 

 

 

[pt2537]

i have changed the thread title to reflect your situation

 

oh and as SG says , they cannot sell the debt on and come after you again