Natwest have taken us to court - please help

[citizenB]

Peep, pt2537 has written loads of defences. If you want to see what they look like, click on his avatar post #7 in this thread and it will bring up the profile.. then click on see all posts made by pt2537 and you can then read through some of the posts to find a defence so you see what they look like. HTH.

[HYMOHYMO]

i have just received a letter from Capquest debt recovery, not sure what to do, how do i post a new thread, pls help anyone this is also from Nat West Bank

[citizenB]

i have just received a letter from Capquest debt recovery, not sure what to do, how do i post a new thread, pls help anyone this is also from Nat West Bank

 

click on this link, it will show you how to start a new thread.

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[peep]

Hiya,

 

i have spent hrs going through Petes posts and have found this as i have copied below. Would this be something like i would use or would my defense be different as this is for a credit card and mine relates to bank charges and overdraft?

 

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. The claimants particulars of claim as very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16

 

3. The claimant has issued proceedings in the XXXXXX County Court therefore according to practice direction 16 Para 7.3

 

 

7.3 Where a claim is based upon a written agreement

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

4. The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction

 

5. Further more the claimant offers no particulars in relation to how the sums claimant are calculated and no statements are attached with the claim in support of the figures

 

6. 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.

 

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

 

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 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. (Attached marked CCM X)

 

9. To Date the claimant has failed to comply with 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. All I have received in relation to my request is ................... ADD WHAT EVER THEY SENT***********

 

10. 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. Copies of the letter and proof of delivery attached marked Exhibit CCM X & X

 

11. For clarity, section 78(1) of the Consumer Credit Act 1974 states

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

 

(a)the state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

12. In response to this request, the claimant's response was to send a single page document, which is annexed to this defence, marked CCM X, which they claimed to be the credit agreement. No other documents were supplied, there were no terms and conditions nor were there any documents relating to the right to cancel. The document clearly states "you have the right to cancel" yet no cancellation notice has been supplied nor are there any details relating to how to cancel which are referred to in the document. I note that the burden of proof is upon the claimant to prove they did indeed send cancellation details and notices as per the ruling of ANGLO LEASING PLC v. PASCOE and ANOTHER [1997] EWCA Civ 895 (31st January, 1997)

 

13. In response to the purported credit agreement supplied by the claimant, Marked Exhibit CCM X, it is denied that it is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document fails entirely to comply with Consumer Credit legislation as laid out below.

 

14. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

16. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

17. 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

 

18. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

19. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

20. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

21. Notwithstanding point 20, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

23. 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

 

24. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) over the following paragraphs

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

25. 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

 

26. In addition to the requirements of schedule 6 of SI1983/1553 these terms must be within the agreement itself, not in a separate document. I refer to the judgement of Tuckey LJ from Wilson and Hurstanger in point 19 above, from reading the document submitted as the "agreement" I cannot see any prescribed terms within the document and since they cannot be contained within another document as laid out by Tucky LJ then I cannot see any other conclusion other than the agreement rendered unenforceable

 

27. Therefore it is submitted that this document falls foul of the Consumer Credit Act 1974 as previously outlined in points 7 through to 15 and as a result Section 127(3) prevents this document from being enforced

 

28. 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/f...974-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.

29. If the claimant is in disagreement, then it is respectfully requested that the claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553. Should the claimant be unable to produce the original agreement or a copy of, signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CCM X) unenforceable.

 

 

30. In addition to the credit agreement being irredeemably flawed, it is submitted that the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) See attached exhibit CCM X

 

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

 

32. I refer to the date of the letter as being the XXXXXX 2007; it is denied that the Default notice was received on the XXXXXXX 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

33. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

 

34. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

37. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

42. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

 

43. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

44. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

 

45. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

46. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

47. I request that the original document be made available by the claimant for inspection pursuant to Practice Direction 32 .if the claimant cannot supply the original documents in this case it is requested that the claimants case be struck out as to seek enforcement the claimant would need to retain the agreement in case a stored copy was for example illegible or corrupted, therefore it stands to reason that the claimant must surely hold such document. however I note there is other pieces of legislation which set out the requirements of Document retention

 

48. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

49. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

50. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

51. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

52. I respectfully request that should the claimant disclose any new documentation that has not been disclosed so far with the Particulars of Claim that the court grant permission to amend this defence accordingly

 

53. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

54. Finally I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

55. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 200:cool:

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

56. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

Signed ..................... (print dont sign)

 

Date

[citizenB]

Peep, sorry I thought you just wanted to see what a defence LOOKED like. I would imagine that the content would be quite different using different legislation, I truly dont know . I think you should perhaps wait until someone with legal experience comes along.

[Docman]

Peeps

 

I think this a very full draft defence that you can tailor to your circumstances. You might like to consider adding a paragraph at the end asking for the court's leave to lodge an amended defence should Shoos submit the documents requested.

 

As regards timescales, I believe the court deems you 'served' with the claim FIVE days after they have posted the claim form to you. You then have 14 days to acknowledge service, which then provides a further 14 days for you to lodge your defence. In theory, this should allow Shoos 14 days to respond to a CPR 18 request, but they like to push it and hope you miss filing a defence within 28 days.

[gh2008]

Peep,

 

I wouldn't worry too much about the defence right now.

 

Best thing to do is to ring the Court and ask them to confirm time scales especially when your defence is due in.

 

Do you already have a claim against the OC on this same account stayed pending the OFT case?

If so I think that will make a difference.

If not you will be submitting a counter-claim for the charges and contractual interest as well, so don't go and jump any guns.

 

PT's defences although at first they may look very similar are all tailored to the particular case, so it is best not to grab one and submit it and then get it torn apart by the other side.

[gh2008]

Firstly the NatWest are persuing us for £4775.00, this whole amount is made up from their bank charges, with the exception of £300. We initiated the court process last year and they made us an offer. We refused their offer and we opted to await the outcome of the test case before making a cliam online against them.

 

When you say you initiated the court process - did you make a claim and have it stayed? or just write to them?

Is this a current account, loan or a credit card?

 

They requested that we do this but before we knew it we were contacted by the bailiffs who wanted to attend our address and draw a list of our possessions that could be sold to pay the debt. We explained what paperwork we had received from Natwest and the whole process we had been through. Needless to say they went back to Natwest and did nt take the case on. We were told by them that Natwest had to sort some things out about offers we had been made and Natwest would contact us when t hat was completed.

 

Did NatWest get a CCJ against you - to send in the bailiffs they would normally do this after judgement wouldn't they?

 

Anyway today we received the county court notice and relevent paperwork to defend the claim. Now i am really panicking and just dont know what to do.

 

You have sent off the acknowledgement haven't you with the intention to defend all of the claim?

 

Sorry if I'm repeating things just trying to get all the info together in one place

[peep]

just a short reply as i must go out now, i'll reply in full what i get back.

 

Thaks for the advice and i wil hang off on the letter.

The other case has been finalised ad we got a £6000 payout in Dec 06. It was about the same two accounts.

 

The money that Natwest are after us for are for the same two accounts as before and the charges have been put on the account since we first began the initial claim.

 

We are in debt to the bank accounts for the amount claimed by natwest but its made up solely of charges they have put on the account since 06. We have not used the accounts since that time.

 

I will ring the courts tomorrow and find out whats needed and when - good idea and one i hadnt thought of, which is so obvious.

 

i gotta go now but will be back soon

 

thank you

[gh2008]

Well, I must admit I wasn't expecting that reply.

 

So just to get this right.

You have not used the accounts since filing a claim against them for unlawful charges.

The claim for unlawful charges was settled (in or out of court?)

Whilst this account was in dispute they added more charges and have continued to do so??

They are now claiming against you on the two accounts, the balance they are claiming for is solely made up of charges, applied since your action against them.

 

me thinks PT will have a field day with this one

[Docman]

Wow, I thought you wanted to defend natwest's claim for £4775 made up of charges over the life of the account, not more charges since a claim for unlawful charges was first made. This is outrageous and should be defended tot eh hilt.

[peep]

I've completed a time line covering action taken on our two accounts todate, hopefully it will give you some understanding of where i'm at.

 

12/08/06 - Request for repayment of charges from 2003 to 12/08/06 of £5929.58

26/08/06 - First LBA

05/09/06 - First MCOL, brought by me as claiment

06/09/06 - First claim issued to Natwest

16/09/06 - Acknowledgement of service from Natwest to defend 1st claim

02/10/06 - 3rd First right of appropiation given personally to bank

manager who stated "We will still use your money as we see fit

and you will have to take us to court if you wanted your money

used in a different way" for 2nd claim

09/10/06 - Defence received from Natwest for 1st claim

24/10/06 - Offer received - £2700 - 1st claim - refused

26/10/06 - Request for repayment of charges on accounts from 15/08/06 to **** £2168.98 - 2nd claim, which is what i'm asking about.

26/10/06 - Offer of settlement for 2nd claim £1060 - refused

27/10/06 - Natwests Allocation questionaire received 1st claim

07/11/06 - Formal notice of intention received from Natwest to file a

defaut notice and take action - 2nd claim.

09/11/06 - LBA for 2nd claim

14/11/-6 - Preliminary hearing date received set for 04/12/06 for 1st claim

14/11/06 - Full settlement offer £5929.58 - ACCEPTED

07/12/06 - Settlement offer for 2nd claim made - refused

16/01/07 - settlement offer for 2nd claim made - refused

07/02/07 - 2nd LBA for 2nd claim (hoping)

01/05/07 - natwest bank card received lol

02/07/07 - offer of £2800.29 for 2nd claim - refused

03/08/07 - offer of £2800.29 refused. Told not to proceed to court but

await test case result or they would ask for a stay.

15/11/07 - Shoosmiths make contact with collection letter - Action

cancelled due to prof of correspondance with Natwest

18/03/08 - MCOL N1 CPC form received - me as defendant for £4773.36

20/03/08 - Acknowledgement of service from Shoosmiths for 2nd claim

25/03/08 - Courts acknowledgement of intention given by us asking for 28

days so we can defend the claim.

 

 

 

These accounts have not been used since early October and are simply now made up of charges. Both accounts are held in my partner and my name. I have only sent one acknowledgement online, is that ok?

 

Please let me know what i should do next. I will ring the court tomorrow and obtain a time line from then regarding proceedings.

Just to clarify all letters have been responded correctly to and on correct timescales on both sides to date.

 

 

I dont think i can add anymore at this stage

 

Please help

[nicklea]

Hi peep,

 

Don't forget that part of your defence is that there are a lot of unlawful charges so you need to put all the arguments covering charges into your defence as well. You are looking to set-off the charges against their claim (and indeed the charges might be even bigger than their claim)

[paulwlton]

just a short reply as i must go out now, i'll reply in full what i get back.

 

Thaks for the advice and i wil hang off on the letter.

The other case has been finalised ad we got a £6000 payout in Dec 06. It was about the same two accounts.

 

The money that NatWest are after us for are for the same two accounts as before and the charges have been put on the account since we first began the initial claim.

 

We are in debt to the bank accounts for the amount claimed by NatWest but its made up solely of charges they have put on the account since 06. We have not used the accounts since that time.

 

I will ring the courts tomorrow and find out whats needed and when - good idea and one i hadnt thought of, which is so obvious.

 

i gotta go now but will be back soon

 

thank you

 

So you haven't used the accounts since 2006. Were you overdrawn in 2006? Are these current accounts?. What are the charges for!?

 

Are the accounts held at Telford for recovery?

 

Confused.

 

PW

[paulwlton]

Hiya,

 

Thankyou again for all your help, Firstly is this thread in the right place to be seen or i have miss placed it.

 

I can confirm that the paperwork i received is the N1 CPC Claim form (04/06). The particulars of the claim say.

 

The Defendant (1) held the accounts as listed below witht the claiment ©. D failed to pay the sums due to C when demanded and the sums that remain outstanding under the respective accounts are listed below

 

Account number Debit Balance

 

In addition C claims interest pursuant to section 69 of the county courts Act 1984 at the tare of 8% per annum from 15/11/2007 to payment, both before and afetr judgement Number.

 

It is signed Jim Taylor

Shoosmiths

The Lakes

Northampton

NN4 7SH

 

hope this helps

 

Strange... they usually stipulate interest to accrue at the account agreement rate up to judgment. The court cannot award 8% interest after judgment.

 

PW

[peep]

So you haven't used the accounts since 2006. Were you overdrawn in 2006? Are these current accounts?. What are the charges for!?

 

Are the accounts held at Telford for recovery?

 

Confused.

 

PW

 

 

 

Hi Paulwlton,

 

Thats correct neither of these accounts have been used since 2006. One is an advantage gold account and one a current account. The accounts were left in an overdrawn state due to the £2000+ charges placed on the accounts between August 2006 and October 2006. (Exact dates and amount as above).

All these charges are for the normal things, returned DD (£295) charges and interest. Charges have been applied monthy to both accounts ever since although the accounts clearly show complete inactivity regarding usuage.

I believe the accounts have been held at Telford recovery for some time.

 

 

peep

[peep]

Hi peep,

 

Don't forget that part of your defence is that there are a lot of unlawful charges so you need to put all the arguments covering charges into your defence as well. You are looking to set-off the charges against their claim (and indeed the charges might be even bigger than their claim)

 

Thanks Nicklea

I will be making a counter claim for the full amount of charges and interest owed, i just dont know how to do this. Would it have any bearing if my claim was for more then £5000, in the way of charges paid by me or how the case is heard?

 

I really need help in drafting a defense as i really dont have a clue where to begin.

 

 

peep

[paulwlton]

Hi Paulwlton,

 

Thats correct neither of these accounts have been used since 2006. One is an advantage gold account and one a current account. The accounts were left in an overdrawn state due to the £2000+ charges placed on the accounts between August 2006 and October 2006. (Exact dates and amount as above).

All these charges are for the normal things, returned DD (£295) charges and interest. Charges have been applied monthy to both accounts ever since although the accounts clearly show complete inactivity regarding usuage.

I believe the accounts have been held at Telford recovery for some time.

 

 

peep

 

Have you made a full S.A.R - (Subject Access Request), if not, i suggest you do.

[Docman]

Hi

I must have been asleep the other night. Clearly, this is not a credit card case but more relating to bank charges. I suggest you need to amend the draft defence above and then counterclaim for the amount of unlawful charges.

Paragraphs 1 - 9 are OK but paragraph 10 - 29 need to be deleted. Paragraphs 30 to 46 should be checked and amended as needed for a bank account claim. Delete paragraphs 47- 51 and from 54 to the end.

You then need to add a new section headed COUNTERCLAIM and state

AND the defendant counterclaims for...[then set out the basis of your claim, as if you had just brought an action to recover bank charges.

Doc

[peep]

Have you made a full S.A.R - (Subject Access Request), if not, i suggest you do.

 

 

No i have not yet made a S.A.R request recently on these account (we did at the beginning of the 2nd claim)

 

I did however forward them the above letter in post #7 requesting information by recorded delivery as always. Is this good enough or shall i also submit an S.A.R?

[peep]

Hi

 

I must have been asleep the other night. Clearly, this is not a credit card case but more relating to bank charges. I suggest you need to amend the draft defence above and then counterclaim for the amount of unlawful charges.

 

Paragraphs 1 - 9 are OK but paragraph 10 - 29 need to be deleted. Paragraphs 30 to 46 should be checked and amended as needed for a bank account claim. Delete paragraphs 47- 51 and from 54 to the end.

 

You then need to add a new section headed COUNTERCLAIM and state

 

AND the defendant counterclaims for...[then set out the basis of your claim, as if you had just brought an action to recover bank charges.

 

Doc

 

Thank you for that - it gives me some direction to follow.Will get that sorted this afternoon

[peep]

I have completed the spreadsheets for contratual interest and 8%, unfortunatly i had a free microsoft word trial which has now expired.

While i can view and print the documents i can not add or alter them.

 

Does anyone know of any spreadsheets that can be used but dont require payment for?

 

Many thanks

[volvodriver]

you can download the whole openoffice suite

 

www: OpenOffice.org - The Free and Open Productivity Suite

[peep]

Thanks Volvodriver,

 

I have begun using the above forms but have ran into a bit of a problem. I have completed the forms correctly giving the contractural rate of interest at yearly, monthy and daily.

It is advised to use the daily tab but some of the fields are missing so it is not calculating it. It has in the box that should say Total interest and Total including interest, #NAME instead of figures.

Can anyone help and explain what i've done wrong as i cant seem to fix it.

 

Many thanks

 

peep

[peep]

PLEASE, PLEASE, PLEASE, PLEASE - CAN SOMEONE OUT THERE PLEASE HELP ME!!!!!!!!!!

 

I am in urgent need of assistance with this and i'm rapidly running out of time. I have to post my defense on Monday so i can meet the 28 day dead line and i need help in making sure it's all correct.

 

Can a moderater please be a buddy for me and help me this weekend to get it sorted.

 

Tonight i have spent 8 hrs trying to open and create my spreadsheets (for counter claim) but to no avail, and now i cant find any at all that have the contractural rates of interest only 8%. I need one that has both and works it out on a daily basis. Please see the above post about problems with amounts in spreadsheets.

 

I have tried Vampiress advanced shhets but it only has the 8% and her spreadsheet chambers are all coming back with error 404. So i cant access them either.

 

I'm having problems as the bank have resused to divulge what charges have been placed on our accounts in the last 7 months and have said that no information will be forthcoming until after my deadline has expired. What do i do about that??? I have all the info i need from 2006 until then so i have most of the charges that my counterclaim refers too but not all.

 

I have emailed people who i know can help me on the site requesting some assistance but no-one has got back to me. I know you guys dont get paid for helping us, and trust me when i say that i think you should. But i am in real need of assistance and as i feel that i have a really good chance of loosing this if i dont.

 

 

So please if you read this and dont know a way of assisting me but know someone who can, could you please pass it on to them or let me know and i'll pm them.

 

Waiting with baited breath

 

Peep xx:(