Help needed defending HFC claim

[car2403]

I'd disagree, sillygirl1, in that the contact I've had with Eversheds has been professional and accurate in content - there's no reason to assume they are not telling the truth, yet.

 

If you can make payment, make to Eversheds with recorded delivery, so you can show any claim is settled before you receive it.

[bigpete]

Received the new claim form through yesterday. It is identical to the origional apart from the claim number. Do I need to send the letters off again, or not as Eversheds advised?

I made my monthly payment and have still not had any of the information I requested through from HFC, only an acknowlegment from Eversheds.

If anyone can help I am very gratefull. Thanks guys

[car2403]

You'll need to do it all again as it's a new claim - the claim form should have the relevant dates for acknowledgement/defence on it? Ignore Eversheds and comply with the claim form!

[bigpete]

Thanks car2403, I will do the AOS online and send out the two letters again special delivery. I'll keep posted with any updates. Cheers mate

[polly55]

subscribing

[bigpete]

Hi all, hope you are all well. Here's an update.

Sent the Request for Information letter (from Pauls post) off again special delivery. Did the AOS online. I still have not recieved any correspondance at all from HFC and have just recieved the one acknowledgement letter from Eversheds regarding the first claim form.

Would anybody please be able to help with the defence as this needs to be in by the 27 May and I just dont have the knowledge or the Language skills to even attempt it. If needs be can I just copy one of the defences from the forum and change the names etc or would the court notice this? I'm getting a little anxious now as the day is drawing closer. HFC and Eversheds have had over six weeks now with no information sent. I hope this will stand in my favour.

All your help is and has been very much appreciated and I wouldnt be doing this without this forum so Thanks again.

[bigpete]

Checked the dates and the defence needs to be in by the 27th of May. I am away for a week from the 29th, will this be a problem? Also with the Bank holiday should I send the defence this week. Any help very appreciated, I am starting to panic a bit now as I havnt a clue for the defence.

[car2403]

So long as the Court has it by 27th, that will be fine. It will take them a few weeks to process/respond to it anyway, so no worries.

[bigpete]

Could anybody please advise me on what I need to include in the defence, I havnt much clue where to start. Thanks

[Hopeful1]

Hi Bigpete

 

Unfortunately i'm no good at this stuff either, but here's a link to my defence that Paul wrote prior to me receiving any docs from Weightmans. If you're really stuck, it may be worth sending a PM to someone who you think may be able to help.

[bigpete]

Thanks Hopeful1, that is a big help as our circumstances are very similar

[bigpete]

HI, Have Edited Hopeful1 defence a bit to try to make it as relevent to my case as possible. Could anybody check it over for me as I am going to post it Friday. Thanks

 

In the xxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

HFC- Claimant

 

and

 

 

xxxxx - Defendant

 

 

 

Defence

 

 

1. I Bigpete of xxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Eversheds on behalf of HFC Bank

 

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 claimant's particulars are prima facie insufficiently particularised .the claimant clearly cites that they bring this action on the basis of a written agreement. It is common ground that this is a regulated credit agreement, regulated by the Consumer Credit Act 1974. Since the claimant seeks to rely upon a written agreement as the base of their claim a copy of the contract between parties should be attached to the claim

 

4. The claimant offers no particulars as to how the sums contained within the particulars of claim are calculated

 

5. The claimant also makes no mention that this matter is subject to a written dispute between parties nor does the claimant make any mention to correspondence relevant to the case prior to the issue of proceedings nor does the claimant make any reference to the fact that they have failed to discharge their obligations under the Consumer Credit Act 1974, in particular Section 78 (1).

 

6. Prima facie the claimants particulars suggest that this is an open and shut case, however it is not and it is in fact far from it. I will elucidate the main key issues in this defence and outline the reasons why the claimants case is seriously flawed as it stands

 

7. Consequently, since the claimant has failed to set out its case clearly I cannot admit to their

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

 

8. On 26/03/08 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 letters and proof of delivery attached marked Exhibit xxxx 1 & 2

 

 

 

9. 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.

And it is under these provisions which the request was made

 

 

 

10. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

11. It is clear that the correct construction of the Consumer Credit Act 1974 in particular section 78(6) that it is intended to stop the creditor from having any right of enforcement until they are in compliance with written request made under section 78(1) of the Act .

 

12. In response to the requests as outlined in point 08, Eversheds responded with a letter stating they had "asked our client to provide with the documents that you have requested and on receipt of the same we will forward it to you".

13. 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 20/03/2008 & 05/05/2008 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. (Attached marked xxxxxxxxxx 3 & 4)

 

14. To Date the claimant has failed to accede to 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. The claimant did not acknowledge my letter

 

 

 

15. Notwithstanding point XX that the claimant is not entitled as matters stand to this action. 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 assess if the documentation the claimant claims 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).

 

 

16. 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

 

17. 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)

 

 

18. 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

 

 

19. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. in addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

20. 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."

21. 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

 

 

22. 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.

 

23. 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.

 

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

And further more

25. 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

 

26. ".............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.

 

 

27. 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.

28. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

29. 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.

30. Should the claimant be unable to produce the original agreement 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 unenforceable

 

 

31. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 77 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

32. 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).

 

33. As a credit 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.

 

34. 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)."

35. 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.

38. If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "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. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies ot the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

39. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

40. 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

 

41. Notwithstanding point 39, 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)

 

42. 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

 

In conclusion,

 

43. Since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act 1974 as stated this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974

 

44. The claimant has gone out of their way to make matters as difficult as possible, their behaviour is wholly unreasonable and they have failed to comply with various pieces of legislation as submitted in this defence while still forging ahead trying to coerce me to pay towards a debt which they cannot substantiate as being enforceable in law. the claimant should not be entitled to breach the Consumer Credit Act 1974 and expect the court to make an enforcement order while the claimant has not complied with the legislation which it seeks to rely upon, to issue an enforcement order would be wholly unjust and disadvantage the defendant and it is averred that such would be in error and against the will of Parliament and also against the Rulings of the House of Lords in various cases cited in this defence

 

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

 

46. 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.

47. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

48. 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, I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

49. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

50. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer Credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

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.

 

 

 

 

 

 

Statement of Truth

 

 

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

 

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

 

Date

[bigpete]

Amazing, What timing! The postman's just been and pushed the docs through the door ( credit agreement etc ). Cant give details now as I gotta go to work. Will post later.

Unbelievable.

[bigpete]

Had chance to go through the docs that Eversheds have sent. They have sent the following.

A Default Notice dated 2001

A copy of Agreement

Terms and conditions

Screen notes from 2001

Copy of Statement

The copy of statement is for a MRS xxxxx and is not related to my account whatsoever. I called Eversheds about this and they apologised and said they would send the relevent statement as a matter of urgency.

 

Also the numbers dont add up with regards the amount on the claim form. I reckon its over £2000 more than I actually owe.

What is my next move, can I change my plea to defend part of the claim at this late stage. Eversheds have stated in there cover letter that they will allow until the 3rd of June to file my defence, but I am away from the 29th of may so really the 28th is my new deadline.

Really need some help on this, thanks for reading.

[Hopeful1]

Had chance to go through the docs that Eversheds have sent. They have sent the following.

A Default Notice dated 2001

A copy of Agreement

Terms and conditions

Screen notes from 2001

Copy of Statement

The copy of statement is for a MRS xxxxx and is not related to my account whatsoever. I called Eversheds about this and they apologised and said they would send the relevent statement as a matter of urgency.

 

Also the numbers dont add up with regards the amount on the claim form. I reckon its over £2000 more than I actually owe.

What is my next move, can I change my plea to defend part of the claim at this late stage. Eversheds have stated in there cover letter that they will allow until the 3rd of June to file my defence, but I am away from the 29th of may so really the 28th is my new deadline.

Really need some help on this, thanks for reading.

 

Blinkin' typical!! Can you scan up any of the docs ie the agreement and default notice? I have managed to find fault with my default notice. If this isn't valid they shouldn't be taking action.

 

You also need to make sure they send a full statement, so you can see if any charges have been added, legal fees etc. Is there any PPI?

 

Do the T & Cs relate to your agreement?

 

They really are *add own expletives* aren't they?

[bigpete]

Struggling uploading the scans. The image is too small to read when uploaded as bmp. Is there any other way?

[car2403]

Yeah - you can use photobucket (free account) and upload, then post links to the images.

[Hopeful1]

Image hosting, free photo sharing & video sharing at Photobucket

[bigpete]

I am going to change my aos to defend only part of the claim now that the correct documents have turned up. I reckon they are trying to claim over £2000 more than I actually owe.

Is there any other option with the court to avoid a ccj. I am hoping to avoid one seen as though I have been making regular payments for 7 years. I really need some help with a defence as I now only have a few days to send it in.

[Hopeful1]

I am going to change my aos to defend only part of the claim now that the correct documents have turned up. I reckon they are trying to claim over £2000 more than I actually owe.

Is there any other option with the court to avoid a ccj. I am hoping to avoid one seen as though I have been making regular payments for 7 years. I really need some help with a defence as I now only have a few days to send it in.

 

Just bumping this for you Pete, sorry i can't do more.

[bigpete]

Thanks Hopeful1 you have been a great help to me:)

I have had a bash at a defence on the grounds that I havnt recieved a statement of account and therefore cannot calculate the outstanding balance. I doubt if this is a very good defence but its the best I can do.

 

 

 

In the xxxx County Court

Claim number

 

 

 

 

 

Between

 

 

 

HFC- Claimant

 

and

 

 

Bigpete - Defendant

 

 

 

Defence

 

 

1. I Bigpete am the defendant in this action and make the following statement as my defence to the claim made by Eversheds on behalf of HFC Bank

 

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 claimant offers no particulars as to how the sums contained within the particulars of claim are calculated

 

4. Prima facie the claimants particulars suggest that this is an open and shut case, however it is not and it is in fact far from it. I will elucidate the main key issues in this defence and outline the reasons why the claimants case is seriously flawed as it stands

 

5. Consequently, since the claimant has failed to set out its case clearly I cannot admit to their claim and I deny all allegations on the particulars of claim regarding the balance shown

 

6. In an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 20/03/2008 & 05/05/2008 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.

 

7. To Date the claimant has failed to fully accede to my request under the CPR and I have not received any such documentation regarding transactions. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

 

In Conclusion,

 

 

8. Without Disclosure of the relevant requested documentation I am unable to asssess if I am indeed liable to the claimant. The documentation the claimant has failed to provide is of particular relevance to my defence as I believe unlawful charges to have been made on the account.

 

9. As regular monthly payments have been made on the account since 2001, I require a true statement of account from the claimant so I am able to assess how the claimant has calculated the outstanding sum.

 

10. Because regular monthly payments have been made and are up to date and the claimant has accepted regular payments on the account for a total of approximately 73 payments since 2001, I believe the claimants action in bringing this case before the court, is counter to the"Overiding Objectives" of the Civil procedure Rules where the court will expect the parties "to act reasonably....in trying to avoid the necessity for the start of proceedings". (paragraph 4 of the Protocols Practice Direction)

11. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case

 

 

12. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

13. 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, I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

14. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

15. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer Credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

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.

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

[bigpete]

Here are the docs they sent out, notice only 9 days given on default notice, is this relevant?

http://i295.photobucket.com/albums/mm137/curtballs/scan0004.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0003.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0002.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0001.jpg

[car2403]

I am going to change my aos to defend only part of the claim now that the correct documents have turned up. I reckon they are trying to claim over £2000 more than I actually owe.

Is there any other option with the court to avoid a ccj. I am hoping to avoid one seen as though I have been making regular payments for 7 years. I really need some help with a defence as I now only have a few days to send it in.

 

What? What changed so quickly? Whhhhoooooo hoss....

 

Lets do this one step at a time, bigpete

 

Thanks Hopeful1 you have been a great help to me:)

I have had a bash at a defence on the grounds that I havnt recieved a statement of account and therefore cannot calculate the outstanding balance. I doubt if this is a very good defence but its the best I can do.

 

Sorry mate, but I think you're well off with this one

 

Here are the docs they sent out, notice only 9 days given on default notice, is this relevant?

http://i295.photobucket.com/albums/mm137/curtballs/scan0004.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0003.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0002.jpg

http://i295.photobucket.com/albums/mm137/curtballs/scan0001.jpg

 

Lets start with the agreement, first.

 

Fixed term loan, so prescribed terms are amount of credit and repayments. Check and check, so this agreement is enforceable on it's todd.

 

There might be a way out of this, though. The agreement states the APR. Now, the rate of interest isn't a prescribed term here, as it's a fixed sum credit agreement, but as they've stated the APR, we can use this to our advantage, IMHO.

 

The APR isn't right, as its stated as 23.9% - in fact, it's 23.925%. Sadly this doesn't help us, as it's within the tolerances allowed;

 

Permissible tolerances in disclosure of the APR

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document -

 

(1) a rate which exceed the APR by not more than one; or

 

(2) a rate which falls short of the APR by not more than 0.1; or

 

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.".

 

The APR isn't the rate of interest, IMHO. Here's why;

 

The agreement provided has been improperly executed under s.61(1) Consumer Credit Act 1974, as the rate of interest of the loan is missing.

 

While the agreement states the annual percentage rate (APR) of the loan, the Defendant will make submissions showing that the APR is not a sufficient rate of interest to comply with the requirements of the Act or the subsequent regulations made under it, to which this agreement is subject.

 

So, you can argue that, as the agreement didn't have the rate of interest on it, that it is unenforceable under s.127(1)(i), if - and only if - you can show that you've been prejudiced by the agreement.

 

Again, IMHO, prejudice would be that you didn't have a clear rate of interest (remember that APR isn't a rate of interest - read here for why; http://www.consumeractiongroup.co.uk/forum/legalities/136701-apr-con.html?highlight=APR) to compare other loans when you took it out.

 

We also need to consider the Default Notice here, as an unlawful or inaccurate Default would also be prejudice, IMHO.

 

Is the Default Notice dated 1 October, then?

 

The Default amount surely contains penalty charges - probably a lot, from what you've said about being on a DMP, I would have thought?

 

So, in short, the Default Notice is all wrong - the dates don't match up (if issued after 27 September) and it contains penalty charges.

 

For me, that would be a defence of the whole claim then, on this basis;

 

Failure of a Default Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147)but also give the Defendant a counter claim for damages to the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

So, where from here?

 

If I'm right in my assumptions that we can show prejudice due to the missing interest rate and the unlawful default, you'll have an unenforceable agreement as the Court may not allow them to seek an enforcement order. Even if the Court disagrees with me, we can then argue the Woodchester ruling, plus all those Wilson cases, mean that the contract has been breached and rescinded, so shouldn't be enforced anyway.

 

Can you see now why I think your defence is off the mark? I'm not being funny, but you really, really have nothing to lose in defending this in full, IMHO.

 

You've already said that you are making payments you can afford. So long as that continues, and even where you lose and get a CCJ, the Judge will have to accept those payments - you can't afford any more. Only if you default on the CCJ, (i.e., fail to make those payments you can afford) will the Judge even consider awarding a CO.

 

On the flip side, if the Judge disagrees with all of this (which I'd find it hard to believe he would!) you would risk having the CCJ anyway, but then you'd have to pay HFC's costs. IMHO, that's a very small, remote risk against the possibility of having an unenforceable debt.

 

Of course, this is your call, bigpete, but you do have a difficult decision to make. I can easily construct a defence surrounding this for you - probably today, if you know what you want to do?

 

Incidentally, you really should read robcag's thread, as he is on fast track; (this isn't a small claim, folks)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/124572-hfc-no-agreement-amended.html

[bigpete]

:) Thankyou Thankyou Thankyou. Can I just say I am overjoyed to have you onboard car2403, I have been really panicking. If you think I have grounds to defend the whole claim then that is good enough for me. I was panicking mate for a while now with the date aproaching. I know how busy you all are, so thanks again mate.

 

The date on the default notice is the 2nd October 2001. It seens that the apr(£5225) has been added to the £8101 that I boroowed, back in 2001 when I defaulted. Can they do this as surely apr should only be charged anually?

However, I have payed over £2000 off since the default notice was issued and was told by my dmc that interest would be frozen.....so it would seem that I have made monthly payments for 7 years without it having any affect on the balance.

 

Would it even be worth mentioning that they sent me another persons account sumary instead of my own, showing name and account number and monies involved? Just to highlight their incompetence

 

I think this is the way to go then mate if you think the agreement may be unenforcable. As far as writing the defence goes, you have proberbly judged by my previous attempts that I need help on it, I tried!

Thanks again car2403, I was over the moon when I opened my thread and seen your post. It really does make all the difference in the world.

[car2403]

:) Thankyou Thankyou Thankyou. Can I just say I am overjoyed to have you onboard car2403, I have been really panicking. If you think I have grounds to defend the whole claim then that is good enough for me. I was panicking mate for a while now with the date aproaching. I know how busy you all are, so thanks again mate.

 

Don't thank me just yet - this isn't over, remember... I know what you mean though, as I was just as shocked when I received my first court claim against me. In fact, I was probably worse than you for panicking! Until other CAG-gers came on board and pointed me in the right direction. Now, I reckon I can take on the world. (Have you seen my other threads? )

 

The point I'm making above, mate, is that you have a chance of defending the claim. You have binding House of Lords/Court of Appeal authority to rely on in defending, so I reckon you have a 99% chance of winning this. The 1% is the possibility that a Judge disagrees with you/me/CAG and that he decides you don't win. If that happens, you'd have grounds for appeal, IMHO.

 

All this depends on how big your b*lls are, really. (Imagine the size of mine! ) But, there is a possibility that this could be REALLY, REALLY expensive, if you should lose... I've seen HFC quote upward of £5k costs in cases like this. That's just to scare you off, IMHO, but if the Judge agrees with them, then lets them recover their costs, that is the bill you could be facing. As I said earlier, your call mate.

 

One thing to bear in mind, (as I re-read my earlier post) is that the Judge doesn't have to consider the missing interest rate at all - it isn't a prescribed term for this type of agreement, so he may not agree with my view that it needs to be looked at.

 

IMHO, with the issues regarding the Default Notice, this prejudice could just sway him in your direction though.

 

The date on the default notice is the 2nd October 2001. It seens that the apr(£5225) has been added to the £8101 that I boroowed, back in 2001 when I defaulted. Can they do this as surely apr should only be charged anually?

 

Great, so it's definately wrong then!

 

I know what you mean with the APR thing, but, sadly, when they Default you, there is authority for them to recover all interest under the agreement until the end of it as part of their claim. I can't put my hands on the case right now, but it definately is the process. (I'll edit this post if I come across it later)

 

However, I have payed over £2000 off since the default notice was issued and was told by my dmc that interest would be frozen.....so it would seem that I have made monthly payments for 7 years without it having any affect on the balance.

 

Hmmm, yes... that is peculiar.

 

To be honest, it won't matter if the debt is unenforceable - they can sing for the interest as well!

 

Would it even be worth mentioning that they sent me another persons account sumary instead of my own, showing name and account number and monies involved? Just to highlight their incompetence

 

Doesn't help your case at all - it may annoy the Judge some more, though.

 

Personally, I wouldn't be bringing it up here. I would, however, be complianing to the ICO;

 

Information Commissioner's Office - ICO

 

I would also send all the originals to the person named on the documents, giving them your details and asking them to also complain. Heck, they could even sue them for damages over that little lot. (Refer to them to CAG if they want to know how!)

 

I think this is the way to go then mate if you think the agreement may be unenforcable. As far as writing the defence goes, you have proberbly judged by my previous attempts that I need help on it, I tried!

 

Well, I'll get on with the defence, if you get on with the (ICO complaint first!) thinking about the risks/costs involved if you do lose. If you're happy with that, go for it, Batman!

 

I know what you mean with the defence writing - unless you've done them before, it's easy to miss the detail. It is good you had a go first though, even if it was very wrong!

 

Thanks again car2403, I was over the moon when I opened my thread and seen your post. It really does make all the difference in the world.

 

No problem. I now need to grab a brew and get my thinking cap on for your defence.

 

If I don't get it up tonight, don't worry, as I am about tomorrow as well. I'm off to a gig tonight, (don't ask who to see!) so I don't want you thinking I've given up on you.