Received a court claim from Bryan Carter Solicitors **WON THEY GAVE UP**

[DoubleVee]

Like I say, he ain't no consumer law lawyer.

 

Claim issue date is 6th March 2008

[The GodMother]

good start and now just let us take it from here you will get the same service but you may need to make your own drinks.

 

Any way i would send off a CCA request

[DoubleVee]

Not sure if it's needed but this is the particulars of claim on the court claim form.

The claimant claims 164, such sum being part of a debt due under an agreement number Y******* ("The Agreement") whereby the defendant agreed to pay the claimant 658.79 ("The Debt")

 

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.

[The GodMother]

not really it is just them telling us they are wanting to waste courts time.

 

I would check that with pt tho

[sillygirl1]

Something about Section 35 (I think thats correct) of the County Courts act says they can't go for 2 CCJs on the same debt - which is what BC are trying to do - they can't claim to take part of the debt one day and then go back for the rest - it's downright abuse of process.

[pt2537]

Thats right SG, s35 makes it unlawful for them to split one cause of action into two separate causes

 

by doing that they are making a blatant abuse of the process

[DoubleVee]

[causing problems] gits!!!

 

Any idea what I should add to my defence yet guys?

[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 xxxxxxxxxxxxx

 

2. 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.

 

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

 

4. 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 Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt 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.

 

.

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

 

Abuse of the process

 

6. It is also noted that the claimant is trying to conduct this claim contrary to s35 of County Courts Act 1984 as I note the claimant has split once cause of action into two separate claims. This is unlawful as laid out in section 35 CCA 1984 and it is requested that the court strike out this case as a clear abuse of the process

 

Credit account

 

7. The account no xxxxxxxxxxxx referred to relates originally to a Littlewoods catalogue account and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia

 

(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

 

8. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

 

9. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

 

10. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

 

11. The Claimant is therefore put to strict proof that such agreement exists

The Request for Disclosure under the CPR

 

12. 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 between 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.

 

13. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007

 

 

14. To Date the claimant has ignored my request under the CPR 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, especially given that I am Litigant in Person

Consequences of Non Disclosure of the agreement

 

15. 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 asses if the documentation the claimant would need 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)

 

16. 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

 

 

 

 

17. Further more 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

 

18. With regards to the Authority cited in point 17, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

19. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

 

20. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

 

 

The default notice

 

21. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

22. 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

 

23. Notwithstanding point 18, 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)

 

24. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

Deed of Assignment

 

 

25. The defendant requires sight of the deed of assignment of the debt from Littlewoods to Phoenix Recoveries (UK) Ltd S.A.R.L , for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt from Littlewoods to Phoenix Recoveries (UK) Ltd S.A.R.L.

 

 

Conclusion

 

26. 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.

 

27. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

.

28. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

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

 

Date

 

 

 

 

 

something along those lines should do the trick

[DoubleVee]

Thanks pt

 

Should I just copy all that, changing where relevant into MCOL? Will there be enough room? And Phoenix Recoveries is the claimant isn't it?

 

Also, point 12. Should I send a CPR letter off today after filing this defence? Or should I remove points 12-14?

[DoubleVee]

I wasn't sure what to do so I submitted an Acknowledgement of Service via MCOL, printed off a CPR letter and I'm about to go send it recorded delivery. Then I'll submit my defence. :-| Don't if I've done the right thing or not.

[DoubleVee]

Ok, they recived my letter this morning. When should I submit my defence?

[The GodMother]

depends

How many days di you give them to get u the info?

[pt2537]

It really doesnt matter too much, the key thing is that you get it submitted before the end of the 28 day period that you have to submit the defence. i would leave it til 5 days before your defence is due then send it via special delivery

 

to be honest, from what i have seen from these , if you defended on the basis that "the Earth was invaded by little green men" then they would discontinue the case.

 

i have yet to hear of a case where they have proceeded to trial when they have done this kind of thing like splitting the causes of action etc so i really wouldnt worry too much. i would say that when they get the defence they will give up;)

[DoubleVee]

I used the CPR letter pt posted here http://www.consumeractiongroup.co.uk/forum/show-post/post-1048118.html

which gives 14 days. PT, do you mean send my defence by recorded delivery to the court? I was gonna do that via MoneyClaimOnline.

[Markiemark1]

This crowd tried this [problem] with my sister on behalf of the Nationwide. Ignored the letter requesting details of the debt, copy agreement etc and waited for us to file defence - at which point they rolled and said they would continue to accept the £11 odd she pays via DMP. I'm tempted to actually tell them to FO as they havent provided agreement and let the court order them to produce it so as to highlight to the court system the shoddy way they behave. Any thoughts?

[The GodMother]

if you start your own thread on this we will be able to help u more.

 

I think it is up to you but i would let them hang them selves out to dry if they want to take her to court let them and then kick there butts

[patrickq1]

hi PT if its possible need help urgent on this thread posted

patrickq1

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/134199-bryan-carter-says-no-2.html?highlight=bryan+carter

[pt2537]

Already on it Patrick, just reading it now

 

seems to be Carters M.O at the moment to try and split the claim, this is completely unlawful and breaches S35 of the County Courts Act 1984 and they should know better

[DoubleVee]

pt, how should I submit my defence to the court? Online or by snail mail? Sorry for being a pest, I just haven't got a clue with things like this.

[pt2537]

pt, how should I submit my defence to the court? Online or by snail mail? Sorry for being a pest, I just haven't got a clue with things like this.

Hi there,

 

 

it wont go online anyway so thats out of the question, it will need to go special delivery to the court

 

now you need to give them a chance to supply you the documents so i would say submit it when you have around 4 days to go. if your not sure of the deadline then give the court a call to check

 

also, dont forget to amend the relevent parts of the defence that need attention

[DoubleVee]

When you say won't go online I assume you mean because it's too long? Claim was issued 6th March and I submitted an acknowledgement of service on the 11th March. That means I have until 3rd April to file a defence. So if I send it on the 24th March I should be alright? Got my brother's wedding to head off to towards the end of that week so I need to send it off before then.

 

This may sound stupid, but can I just print the defence you posted (changed where relevant) and attach it to my defence form? Also, what will happen after I've submitted the forms? And am I disputing the full amount being claimed? :-?

[pt2537]

When you say won't go online I assume you mean because it's too long?Yes Mcol has a maximum limit on the characters that you can use Claim was issued 6th March and I submitted an acknowledgement of service on the 11th March. That means I have until 3rd April to file a defence. So if I send it on the 24th March I should be alright? Got my brother's wedding to head off to towards the end of that week so I need to send it off before then. Ok so when did you send off the CPR request for disclosure of the documents ,you really need to give them enough time to reply to that before you file the defence, its no good sending a CPR letter then the next day,filing a defence that says they have failed to comply with my request if you havent given them time to reply

 

This may sound stupid, but can I just print the defence you posted (changed where relevant) and attach it to my defence form? Also, what will happen after I've submitted the forms? And am I disputing the full amount being claimed? :-?

Yes print the defence i posted, once youve amended it and put your details etc onto it, then attach it to the N9B form and write on the form Defence document attached

 

once youve submitted the defence, theres a fair chance that carters will give up and file a discontinuance but if they dont then the court will send them a copy of your defence and they have 28 days to decide if they want to continue with the claim

 

if they do then you will recieve an Allocation Questionnaire, when you do let me know

[DoubleVee]

I sent the letter March 11th, they received it March 12th. 26th March will be 14 days. Should be ok to file a defence then, as the letter stated 14 days.

 

I'll do that and then let you know what happens.

 

Thanks you so much for your help my friend. You're a credit to society, along with everyone else connected to this site. Thanks!!

[pt2537]

Thank, they are very kind words and i truly appreciate it. Please shout as soon as you hear anything, then we can look at whats happened and prepare accordingly, even if you receive a notice saying they have discontinued the case , let me know

 

good luck, not that you will need it of course:)

 

Regards

paul

[The GodMother]

When you say won't go online I assume you mean because it's too long? Claim was issued 6th March and I submitted an acknowledgement of service on the 11th March. That means I have until 3rd April to file a defence. So if I send it on the 24th March I should be alright? Got my brother's wedding to head off to towards the end of that week so I need to send it off before then. Good luck with finding a open post office on the 24th as that is Easter Monday. Personally i would send it first thing on the 25th or on the Saturday Before Easter.

 

This may sound stupid, but can I just print the defence you posted (changed where relevant) and attach it to my defence form? Also, what will happen after I've submitted the forms? And am I disputing the full amount being claimed? :-?

..............