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MCE Portfolio

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I have a feeling that this is going to be a good one folks :D

 

Original creditor is British Credit Trust - here's a bit of a timeline:

 

Aug 2007 - notification from BCT of balance outstanding £3408.71

 

Nov 2007 - Fredrickson International appointed DCA for balance of £3273.09

 

28/11/07 - I CCA'd Fredricksons (delivered 29/11/07 )

 

05/12/07 - Fredricksons write to say "we have referred the matter to our client and will revert [sic] to [you] as soon as we are in receipt of instructions. In the mean time [sic] we confirm that we have placed the account on hold"

 

06/12/07 - Fredricksons write again to confirm that they've contacted the OC and will forward on receipt - returned my PO too.

 

----no communication since, but fast forward to:

 

Feb 08 - 1st Notice of Assignment (dated 12/02/08 ) received, Marlins Financial Services appointed as DCA - see link - notice how the balance is now £3484.32

 

Feb 08 - 2nd Notice of Assignment (dated 21/02/08 ) received, Marlins Financial Services appointed as DCA - see link

 

Mar 08 - Letter from Marlins (dated 12/03/08 ) with usual guff about Land Registry, blah blah blah. See link

 

18/03/08 - wrote the following to Marlins:

Tuesday, 18th March, 2008

Marlins Financial Services

2 The Courtyard

Beeding Court

Shoreham Road

Steyning

West Sussex

BN44 3BJ

 

Dear Sir/Madam

 

Reference XXXXXXXX

 

Thank you for your letter of 12th March 2008, received yesterday.

 

You are advised that a request under s77(1) of the Consumer Credit Act (1974) was made to Fredrickson International on 28th November 2007 (copy enclosed for your reference) and was acknowledged by them on 6th December 2007. Since 11th January 2008, Fredrickson International (and therefore British Credit Trust and yourselves) have been in default of this request and as provided in the Consumer Credit Act (1974), no enforcement action can be taken.

 

Accordingly, you are formally notified that I do not acknowledge any debt or monies due to yourselves or British Credit Trust Ltd, as is claimed in your letter, and you are advised that any alledged amount due is in dispute. The Office Of Fair Trading Debt Collection Guidance - Unfair Business Practices (July 2003) states that whilst this alleged amount is in dispute and being investigated you must cease all collection activity. Failure to do so will result in this matter being notified to the Office of Fair Trading and may constitute harassment contrary to section 40(1) of the Administration of Justice Act 1970.

 

You are advised that I will only communicate on this matter in writing. Therefore, with immediate effect, please ensure that any & all phone numbers for me are removed from your records – this includes the records held by any third party connected with this matter.

In addition, it is not sufficient for you to write and say “please call us”. You are hereby warned that any telephone calls, after the receipt of a request not to call, may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Many thanks

 

Yours faithfully

{mcuth}

Mar 08 - Received letter from Mortimer Clark Solicitors (dated 25/03/08 ) - see link - notice how the balance is now £3617.32?

 

28/03/08 - wrote the following to Mortimer Clark:

Friday, 28th March, 2008

Mortimer Clarke Solicitors

2 The Courtyard

Shoreham Road

Steyning

West Sussex

BN44 3BJ

 

Dear Sir/Madam

 

Re: MCE Portfolio Ltd

Your ref: XXX: XXXXXX

 

Thank you for your letter of 25th March 2008, the contents of which I note.

 

In reply, I simply refer you to my letter of 18th March sent to Marlins Financial Services (copy attached for your reference). I find it strange that you should be unaware of the contents of this letter, given that you share the same address.

 

By instructing you to continue the pursuit of any alleged amount, your client is in serious breach of the provisions of the Consumer Credit Act (1974) and the Office Of Fair Trading Debt Collection Guidance - Unfair Business Practices (July 2003). You can be assured that if you proceed to bring a County Court claim in full knowledge of the situation, this will be brought to the attention of the Court.

 

Yours faithfully

 

{mcuth}

04/04/08 - received letter from Mortimer Clark (dated 02/04/08 ) - see link

 

05/04/08 - received N1 from Northampton CC, sum claimed £3694.14 plus costs of £165 = total £3859.14, with Claimant as MCE Portfolio Ltd.

The PoC are wonderful (:lol:) and are reproduced verbatim here:

By a credit agreement in writing between British Credit Trust Ltd (BCT) & the Defendant dated 22/04/2005 (the Agreement), BCT agreed to loan the defendant monies under the terms & conditions set out therein. The Agreement is regulated by the Consumer Credit Act 1974. In breach of the Agreement, the Defendant did not pay the instalments as they fell due. BCT served a Default Notice on the Defendant stating the sum due & requiring the Defendant to pay the same. The Defendant failed to pay & the Agreement was terminated. The Agreement was assigned to the Claimant on 18/01/2008.

THE CLAIMANT THEREFORE CLAIMS:

1. £3,617.32 Phoenix Recoveries (UK) Ltd

2. Interest at the rate pursuant to the Agreement namely 76.82 & continuing until Judgment or sooner payment at the daily rate of 1.01 or in the alternative interest pursuant to section 69 of the County Courts Act 1984. Also, interest at the rate pursuant to the Agreement from the Judgment date until payment.

No, I don't know what Phoenix Recoveries is either!

 

I did AoS on Monday, so have a bit of time to enter my Defence, which I'm already drafting - however, I'm thinking about going straight for a strike out. See, if I enter a Defence and rely on that only, if the Claimant satisfies the info in the Defence, I get a CCJ.....

 

I'm thinking that the balance is going to include some hefty charges too - even though I did claim some back originally, BCT kept adding them afterwards (they never were never too enlightened)!

 

Anyway, I know they've not followed pre-action protocols, and they're in default of my CCA, not to mention that confusing crap about assignment twice, so I think I'm sitting nicely at the moment. Any nice juicy comments from anyone? :D

 

Cheers

Michael


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I have a feeling that this is going to be a good one folks :D

 

Original creditor is British Credit Trust - here's a bit of a timeline:

 

Aug 2007 - notification from BCT of balance outstanding £3408.71

 

Nov 2007 - Fredrickson International appointed DCA for balance of £3273.09

 

28/11/07 - I CCA'd Fredricksons (delivered 29/11/08 )

 

05/12/07 - Fredricksons write to say "we have referred the matter to our client and will revert [sic] to [you] as soon as we are in receipt of instructions. In the mean time [sic] we confirm that we have placed the account on hold"

 

06/12/07 - Fredricksons write again to confirm that they've contacted the OC and will forward on receipt - returned my PO too.

 

----no communication since, but fast forward to:

 

Feb 08 - 1st Notice of Assignment (dated 12/02/08 ) received, Marlins Financial Services appointed as DCA - see link - notice how the balance is now £3484.32

 

Feb 08 - 2nd Notice of Assignment (dated 21/02/08 ) received, Marlins Financial Services appointed as DCA - see link

 

Mar 08 - Letter from Marlins (dated 12/03/08 ) with usual guff about Land Registry, blah blah blah. See link

 

18/03/08 - wrote the following to Marlins:

Mar 08 - Received letter from Mortimer Clark Solicitors (dated 25/03/08 ) - see link - notice how the balance is now £3617.32?

 

28/03/08 - wrote the following to Mortimer Clark:

04/04/08 - received letter from Mortimer Clark (dated 02/04/08 ) - see link

 

05/04/08 - received N1 from Northampton CC, sum claimed £3694.14 plus costs of £165 = total £3859.14, with Claimant as MCE Portfolio Ltd.

The PoC are wonderful (:lol:) and are reproduced verbatim here:

No, I don't know what Phoenix Recoveries is either!

 

I did AoS on Monday, so have a bit of time to enter my Defence, which I'm already drafting - however, I'm thinking about going straight for a strike out. See, if I enter a Defence and rely on that only, if the Claimant satisfies the info in the Defence, I get a CCJ.....

 

I'm thinking that the balance is going to include some hefty charges too - even though I did claim some back originally, BCT kept adding them afterwards (they never were never too enlightened)!

 

Anyway, I know they've not followed pre-action protocols, and they're in default of my CCA, not to mention that confusing crap about assignment twice, so I think I'm sitting nicely at the moment. Any nice juicy comments from anyone? :D

 

Cheers

Michael

 

Well, looks like youre having fun Michael

 

where was the claim issues? was it through the bulk centre?

 

who is the claimant on the claim form? is it phoenix? or A another?

 

im not sure a strike out will be successful, but may be worth a try i guess.

 

do you know for sure that they dont have the agreement?

 

To be honest from my first reading of this, i was thinking "Where's their donkey as we need to fillet it" :-D

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Hi Paul, fancy seeing you here ;)

 

Well, looks like youre having fun Michael

 

Er yeah, that's one word for it :D

 

where was the claim issues? was it through the bulk centre?

 

Yup, Bulk Centre issued it

 

who is the claimant on the claim form? is it phoenix? or A another?

 

Claimant is MCE Portfolio Ltd

Claim issue date is 3rd April.

 

im not sure a strike out will be successful, but may be worth a try i guess.

 

Well I was thinking that they shouldn't have brought the action in the first place, and defending brings certain risks - i.e. if there's a hearing and they manage to satisfy any orders made, it becomes difficult to avoid getting a CCJ. That's of course unless my Defence is along the lines of "strike this out because it's a bag of ****" and I don't agree to them fulfilling orders :D

 

do you know for sure that they dont have the agreement?

 

Nope, all I know is that Fredrickson received the CCA request, acknowledged it and BCT shouldn't even have sold the account as it was obviously in dispute....

 

To be honest from my first reading of this, i was thinking "Where's their donkey as we need to fillet it" :-D

 

LOL - yeah, me too :lol:

 

Cheers

Michael


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More than anything on this, I think I'll need some help on the technicalities of Assignment as it's the first time I've dealt with that....

 

Cheers

Michael


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You have email, it should help with the assignment issues

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You have email, it should help with the assignment issues

 

Thanks matey - much appreciated :)

 

Cheers

Michael


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No worries, ive got loads more info on assignments if you need it;-)

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Feb 08 - 1st Notice of Assignment (dated 12/02/08 ) received, Marlins Financial Services appointed as DCA - see link - notice how the balance is now £3484.32

 

Feb 08 - 2nd Notice of Assignment (dated 21/02/08 ) received, Marlins Financial Services appointed as DCA - see link

 

Interesting examination of these....

 

1st NoA - dated 12th Feb - states assignment on 17th Jan

Assigned from BCT to MCE Portfolio Ltd

 

2nd NoA - dated 21st Feb - states 2 assignments:

1. On 17th Jan - assigned from BCT to Marlin Capital Europe Ltd

2. On 18th Jan - assigned from Marlin Capital Europe Ltd to MCE Portfolio Ltd

 

Not only is this confusing, but is it legal? Does the 2nd NoA supercede the 1st? Is a NoA valid when the date of the Notice is different to the date of assignment?

 

Cheers

Michael


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Ok, here's the 1st draft of my Defence:

 

1.Save as is otherwise pled by the Defendant hereafter, The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

The Particulars of Claim

2.The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

3.The Claimant’s Particulars of Claim disclose no legal cause of action.

 

4.The Claimant's Particulars of Claim are insufficiently particularised and do not comply with CPR part 16.

 

4.1In particular, the Defendant wishes to draw the Court’s attention to the following matters:

 

4.1.1The Particulars of Claim are vague, insufficient and do not disclose an adequate statement of facts relating to or preceeding the alleged cause of action. No particulars are offered in relation to the nature of the written Agreement referred to, the account number of the Agreement, the method the Claimant has calculated any outstanding sums due, or any Default Notice issued required for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim;

 

4.1.2A copy of the purported written Agreement that the Claimant cites in the Particulars of Claim and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form;

 

4.1.3A copy of the purported Default Notice cited in the Particulars of Claim, and as required by s87(1) Consumer Credit Act (1974), has not been served attached to the claim form;

 

4.1.4A copy of any Deed of Assignment giving the Claimant right of action in this matter has not been served attached to the claim form;

 

4.1.5A copy of any Notice of Assignment sent to the Defendant (with proof of service as per s196 Law of Property Act 1925) giving the Claimant right of action in this matter has not been served attached to the claim form;

 

4.1.6A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

5.The Defendant has no knowledge of why reference is made to “Phoenix Recoveries (UK) Ltd” in the Particulars of Claim, and requires explanation of this by the Claimant.

 

The Pre-Action Protocols

6.After receiving a letter dated 12th March 2008 from the Claimant’s collection agents, Marlin Financial Services Ltd (“MFS”), the Defendant responded on 18th March 2008 advising MFS that a request under s771(1) Consumer Credit Act (1974), as detailed in paragraphs 14–26 below, had not been satisfied and that any alleged amount was in dispute. A copy of this letter is annexed to this Defence and annotated “Appendix 1”.

 

7.No response to the Defendant’s letter of 18th March 2008 was received.

 

8.The Defendant received a letter before action dated 25th March 2008, from the Claimant’s Solicitors (Mortimer Clarke Solicitors). The letter demanded full payment within 7 days or a County Court claim would be issued. A copy of this letter is annexed to this Defence and annotated “Appendix 2”.

 

9.The Defendant responded to the Claimant’s Solicitors with a letter dated 28th March 2008, advising them to refer to the letter sent to MFS on 18th March 2008 and that if their client instructed them to bring proceedings, their client would be in serious breach of the provisions of the Consumer Credit Act (1974) and the Office Of Fair Trading Debt Collection Guidance - Unfair Business Practices (July 2003). A copy of this letter is annexed to this Defence and annotated “Appendix 3”.

 

10.On 4th April 2008, the Defendant received a letter dated 2nd April from the Claimant’s Solicitors stating that their client was not in default of the s77(1) Consumer Credit Act (1974) request. A copy of this letter is annexed to this Defence and annotated “Appendix 4”.

 

11.The Defendant then received the N1 Claim Form from Northampton County Court, issued on 3rd April 2008.

 

12.The Defendant therefore respectfully submits that the Claimant’s Solicitors have not complied with s4 of the Pre-Action Protocols and should not have brought this action.

 

13.The Defendant further avers that the Claimant, their collection agents (MFS) and their Solicitors have behaved unreasonably in dealing with this matter to date and have breached the Office Of Fair Trading Debt Collection Guidance – “Unfair Business Practices” (July 2003).

 

Request under s77(1) Consumer Credit Act (1974)

14.Without prejudice to the above and in respect of that which is denied, on 28th November 2007, the Defendant made a formal request (“the request”) to Fredrickson International Ltd (“FIL”), acting as collection agents on behalf of British Credit Trust Ltd (“BCT”, “the original creditor”), under s77(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £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 total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

15.A copy of the request made is annexed to this Defence and annotated “Appendix 5”

 

16.The request was sent to FIL by recorded delivery on 28th November 2007 and was delivered on 29th November 2007. A copy of the Royal Mail delivery notification is annexed to this Defence and annotated “Appendix 6”

 

17.The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines the “prescribed period” as referenced in s77(1) Consumer Credit Act (1974) and states that the creditor must comply with the request within 12 working days of receipt of the request;

 

18.s77(4) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(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.

 

19.In response to the request, FIL by letters dated 5th and 6th December 2007 (annexed to this Defence and annotated “Appendix 7” and “Appendix 8” respectively) acknowleged the request, confirmed that the request was passed to BCT and that collection activity was on hold pending BCT’s action.

 

20.The Defendant has received no further correspondence regarding the request from either FIL or BCT and the request therefore remains unsatisfied.

 

21.Therefore, the Defendant respectfully submits that, as of 24th December 2007, BCT were in Default of the request and by virtue of s77(4) Consumer Credit Act (1974), were no longer entitled to enforce any alleged agreement.

 

22.Further, the Defendant respectfully submits that, as of 24th January 2008, BCT commited an offence under s77(4) Consumer Credit Act (1974).

 

23.The Defendant avers that BCT had no right to assign an account clearly in dispute and further avers that doing so was a breach of the Office Of Fair Trading Debt Collection Guidance – “Unfair Business Practices” (July 2003).

 

24.As the Claimant avers that the account has been assigned to them, the Defendant avers that, by right of assignment, the Claimant acquired the responsibility for satisfying the request.

 

25.The Defendant therefore respectfully submits that the Claimant is in default of the request, has no right of action in this matter until such time as the default is remedied.

 

26.The Defendant would draw to the attention of the Court that if the request had been complied with and all found to be in order, the Defendant would have been afforded the opportunity to reconsider his position without being under the threat of a County Court Judgement should the Claimant now fulfil their obligations.

 

The Default Notice

27.It is neither admitted or denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) Consumer Credit Act (1974), was ever received. The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

28.Without prejudice to the above, the Defendant puts the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required 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 determined by the 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)

 

29.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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

The Notice of Assignment

30.It is neither admitted or denied that any Notice of Assignment as required by s136(1) Law of Property Act (1925) was served as required by s196 Law of Property Act (1925). The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant in accordance with s196 Law of Property Act (1925).

 

Summary

31.It is denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that such an enforceable Agreement between the parties exists.

 

32.It is further denied that the Claimant is entitled to the sum of £3,617.32 claimed, interest at any rate or any other relief thereon.

 

33.In view of the matters pleaded above, the Defendant respectfully requests that the Court:

 

33.1Gives consideration to striking out the Claimant’s Claim by virtue of failing to abide by the Pre-Action Protocols and awarding costs to the Defendant as per 2.3 of the Pre-Action Protocols;

 

33.2Gives consideration to striking out the Claimant’s Claim by virtue of s77(4) Consumer Credit Act (1974);

 

33.3Gives consideration to striking out the Claimant’s Particulars of Claim by virtue of disclosing no reasonable grounds for bringing the claim;

 

33.4Gives consideration to striking out the Claimant’s Particulars of Claim by virtue of failing to comply with CPR Part 16.

 

 

Statement of Truth

 

Dated this 10th April, 2008

 

I believe that the facts stated in this Defence are true.

 

 

Signed:

 

{mcuth}

Defendant

 

What do we reckon?

 

There are a couple of bits I'm not too sure of:

...quoting the breach of Pre-Action Protocols - firstly referencing them, and also I can't see where the P-AP give a period of time between LBA & issuing?

 

...should I mention more about the NoAs? I'd love to bring them up, but from what I've seen they need to serve a NoA by registered post under s196 Law of Property Act. So, if I admit to receiving them, s196 doesn't come into play - but, if I don't admit to receiving them, I can't rip them a new one over the double assignment (as per previous post)

 

Cheers

Michael


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Thinking maybe this thread should go in "legal issues" now?

 

Cheers

Michael


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Thanks Paul :)

 

Anyone got any comments on the draft Defence?

 

Cheers

Michael


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Ok then folks, I've done a little bit of playing around with the draft Defence, and come up with a version I'm pretty happy to call final:

 

1. Save as is otherwise pled by the Defendant hereafter, The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

The Particulars of Claim

2. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

3. The Claimant’s Particulars of Claim disclose no legal cause or right of action.

4. The Claimant's Particulars of Claim are insufficiently particularised and do not comply with CPR part 16.

4.1 In particular, the Defendant wishes to draw the Court’s attention to the following matters:

 

4.1.1 The Particulars of Claim are vague, insufficient and do not disclose an adequate statement of facts relating to or preceeding the alleged cause of action. No particulars are offered in relation to the nature of the written Agreement referred to, the account number of the Agreement, the method the Claimant has calculated any outstanding sums due, any Default Notice issued, any Notice or Deed of Assignment required for the Claimant to have a legitimate right of action under the purported written Agreement, or any other matters necessary to substantiate the Claimant’s claim;

4.1.2 A copy of the purported written Agreement that the Claimant cites in the Particulars of Claim and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form;

4.1.3 A copy of the purported Default Notice cited in the Particulars of Claim, and as required by s87(1) Consumer Credit Act (1974), has not been served attached to the claim form;

4.1.4 A copy of any Deed of Assignment giving the Claimant right of action in this matter has not been served attached to the claim form;

4.1.5 A copy of any Notice of Assignment sent to the Defendant (with proof of service as per s196 Law of Property Act 1925) giving the Claimant right of action in this matter has not been served attached to the claim form;

4.1.6 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

5. The Defendant has no knowledge of why reference is made to “Phoenix Recoveries (UK) Ltd” in the Particulars of Claim, and the Claimant is required to substantiate this reference.

The Pre-Action Protocols

6. After receiving a letter dated 12th March 2008 from the Claimant’s collection agents, Marlin Financial Services Ltd (“MFS”), the Defendant responded on 18th March 2008 advising MFS that a request under s771(1) Consumer Credit Act (1974), as detailed in paragraphs 14–26 below, had not been satisfied and that any alleged amount was in dispute. A copy of the Defendant’s letter is annexed to this Defence and annotated “Appendix 1”.

7. No response to the Defendant’s letter of 18th March 2008 was received.

8. The Defendant received a letter before action dated 25th March 2008, from Mortimer Clarke Solicitors (“the Claimant’s Solicitors”). The letter demanded full payment within 7 days or a County Court claim would be issued. A copy of this letter is annexed to this Defence and annotated “Appendix 2”.

9. The Defendant responded to the Claimant’s Solicitors with a letter dated 28th March 2008, advising them to refer to the letter sent to MFS on 18th March 2008 and that if their client instructed them to bring proceedings, their client would be in serious breach of the provisions of the Consumer Credit Act (1974) and the Office Of Fair Trading Debt Collection Guidance - Unfair Business Practices (July 2003). A copy of this letter is annexed to this Defence and annotated “Appendix 3”.

10. On 4th April 2008, the Defendant received a letter dated 2nd April from the Claimant’s Solicitors stating that their client was not in default of the s77(1) Consumer Credit Act (1974) request. A copy of this letter is annexed to this Defence and annotated “Appendix 4”.

11. The Defendant then received the N1 Claim Form from Northampton County Court, issued on 3rd April 2008.

12. The Defendant therefore respectfully submits that the Claimant’s Solicitors have not complied with s4 of the Pre-Action Protocols and should not have brought this action.

13. The Defendant further avers that the Claimant, their collection agents (MFS) and their Solicitors have behaved unreasonably in dealing with this matter to date and have breached the Office Of Fair Trading Debt Collection Guidance – “Unfair Business Practices” (July 2003).

Request under s77(1) Consumer Credit Act (1974)

14. Without prejudice to the above and in respect of that which is denied, on 28th November 2007, the Defendant made a formal request (“the request”) to Fredrickson International Ltd (“FIL”), acting as collection agents on behalf of British Credit Trust Ltd (“BCT”, “the original creditor”), under s77(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £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 total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

15. A copy of the request made is annexed to this Defence and annotated “Appendix 5”

16. The request was sent to FIL by recorded delivery on 28th November 2007 and was delivered on 29th November 2007. A copy of the Royal Mail delivery notification is annexed to this Defence and annotated “Appendix 6”

17. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines the “prescribed period” as referenced in s77(1) Consumer Credit Act (1974) and states that the creditor must comply with the request within 12 working days of receipt of the request;

18. s77(4) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(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.

19. In response to the request, FIL by letters dated 5th and 6th December 2007 (annexed to this Defence and annotated “Appendix 7” and “Appendix 8” respectively) acknowleged the request, confirmed that the request was passed to BCT and that collection activity was on hold pending BCT’s action.

20. The Defendant has received no further correspondence regarding the request from either FIL or BCT and the request therefore remains unsatisfied.

21. Therefore, the Defendant respectfully submits that, as of 24th December 2007, BCT were in Default of the request and by virtue of s77(4) Consumer Credit Act (1974), were no longer entitled to enforce any alleged agreement.

22. Further, the Defendant respectfully submits that, as of 24th January 2008, BCT commited an offence under s77(4) Consumer Credit Act (1974).

23. The Defendant avers that BCT had no right to assign an account clearly in dispute and further avers that doing so was a breach of the Office Of Fair Trading Debt Collection Guidance – “Unfair Business Practices” (July 2003).

24. As the Claimant avers that the account has been assigned to them, the Defendant avers that, by right of assignment, the Claimant acquired the responsibility for satisfying the request.

25. The Defendant therefore respectfully submits that the Claimant is in default of the request, has no right of action in this matter until such time as the default is remedied.

26. Without prejudice to the above, the Defendant would respectfully draw to the attention of the Court the fact that if the request had been satisfied and everything found to be in order, the Defendant would have been afforded prior opportunity to avoid being the subject of litigation and the consequent threat of a County Court Judgement should the Claimant now fulfil their obligations.

The Default Notice

27. It is neither admitted or denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) Consumer Credit Act (1974), was ever received. The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

28. Without prejudice to the above, the Defendant puts the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required 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 determined by the 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)

29. 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

The Notice of Assignment

30. It is neither admitted or denied that any Notice of Assignment as required by s136(1) Law of Property Act (1925) was served as required by s196 Law of Property Act (1925). The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant in accordance with s196 Law of Property Act (1925).

31. Failure to execute an Assignment in accordance with the Law of Property Act (1925) would render the Assignment invalid and the Claimant would therefore have no right of action.

Summary

32. It is denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that an enforceable Agreement between the parties exists.

33. It is further denied that the Claimant has any cause of action to bring this claim.

34. It is further denied that the Claimant has any right of action in this claim.

35. It is further denied that the Claimant is entitled to the sum of £3,617.32 claimed, interest at any rate or any other relief thereon.

36. In view of the matters pleaded above, the Defendant respectfully requests that the Court:

36.1 Gives consideration to striking out the Claimant’s Claim by virtue of failing to abide by the Pre-Action Protocols and awarding costs to the Defendant as per 2.3 of the Pre-Action Protocols;

36.2 Gives consideration to striking out the Claimant’s Claim by virtue of s77(4) Consumer Credit Act (1974);

36.3 Gives consideration to striking out the Claimant’s Particulars of Claim by virtue of disclosing no reasonable grounds for bringing the claim;

36.4 Gives consideration to striking out the Claimant’s Particulars of Claim by virtue of failing to comply with CPR Part 16.

Statement of Truth

Dated this XXth April, 2008

I believe that the facts stated in this Defence are true.

Signed:

{mcuth}

Defendant

 

What do you think? Any comments/adjustments/deletions/etc...?

 

I'm getting ready to send this off soon so it's all done & out of the way - some of us have a holiday to go on in a couple of weeks :D

 

 

Cheers

Michael


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Am presuming the Defence is ok then, so it's off in the post tomorrow :)

 

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Michael


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Well, looking at MCOL, the Defence was received & processed by NCC on 23rd April, but I've not heard anything from them since....

 

Do they only write when the Claimant states they're intending to continue and the case gets transferred?

 

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Michael


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Now received my AQ (N149) that has to be returned to my local court by 2nd June.

 

I may have to go on a slight variation to the norm with it, as I want the case struck out rather than affording them an opportunity to supply documentation..... any advice?

 

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Michael


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I may have to go on a slight variation to the norm with it, as I want the case struck out rather than affording them an opportunity to supply documentation..... any advice?

 

Well, am submitting a "standard" N149 today, as I couldn't think of any directions that wouldn't impact on hearing the case - submitting draft directions will only lead to an allocation hearing and afford them the opportunity to produce docs, more time.... I'd rather have a hearing set and tear them apart in that :D

 

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Michael


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Went to court this lunchtime and filed the AQ, while I was there, I asked if the Claimant had filed theirs and was told that they hadn't as yet - deadline is today, so if nothing from them by the middle of the week, the file will be up with the DJ for review. Interesting.... :D

 

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Michael


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Received the following letter from Mortimer Clarke:

 

scan0001.jpg

 

ROTFLMFAO at the "deemed served" bit - they obviously haven't read the Law of Property Act! :D

 

Anyhow, here's the agreement (only 1 page, no Ts&Cs, no cancellation notice):

 

scan0002.jpg

 

Here's the default notice (note, the "agreement date" is incorrect, and my postcode is also incorrect):

 

scan0003.jpg

 

Here's the "notice of balance outstanding":

 

scan0004.jpg

 

Here's the statement (2 pages), "referance" [sic] blanked out - isn't it strange how a payment is due on 01/02/08, well after the account has been "assigned"?:

 

scan0005.jpg

 

scan0006.jpg

 

Here's the 1st Deed of Assignment (no schedule attached, so no proof the account was included) - NB, the blankings out have been done by MCE/Mortimer Clarke:

 

scan0007.jpg

 

scan0008.jpg

 

scan0009.jpg

 

Apparently I need to split my post at this point, due to the images included...

 

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Michael


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Continued....

 

Here's the 2nd Deed of Assignment (no schedule attached, so no proof the account was included) - NB, the blankings out have been done by MCE/Mortimer Clarke:

 

scan0010.jpg

 

scan0011.jpg

 

scan0012.jpg

 

scan0013.jpg

 

Here's the Notice of Assignment:

 

scan0014.jpg

 

Finally, here's their nastygram threat...:

 

scan0015.jpg

 

All interesting stuff - don't think I'll be amending my defence as yet, but would appreciate comments :)

 

Cheers

Michael


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HI,

 

Some one else is in exactly the same position with mce and BCT with the assignment on exactly the same dates and same documentation:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/133449-dca-ccj-help-please-8.html#post1541249

 

I put together a defence for her that is on that page. It is quuite interesting what they've done with the assignmensts as I believe that they've totally scr*wed themselves, this is a bit of what I wrote for the other poster and I hope it might be useful for you as well:-

 

Assignment of the Debt

16.A copy of a Notice of Assignment that it is alleged was sent to me was disclosed by the Claimant’s solicitors. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) states that for the assignment of a debt to be effective, explicit notice of the assignment must have been given in writing to the debtor.

17.Section 196(4) of The Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery)

18.For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me pursuant to s196(4) before action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

19.Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I note that the alleged Notice of Assignment refers to two separate assignments and was given under the hand of the Assignee in the case of the first assignment.

20.I submit that as a result of this the Notice of Assignment with regard to the first assignment is invalid as it has not been given under the hand of the original Assignor (referred to in the document as “1st Assignor”) BCT. As a result, the first assignment is ineffective and the Claimant has no right of action.

21.Further, or alternatively, I submit that the second assignment is also ineffective. If the first assignment was effective (which is denied) and this document had of been sufficiently served on me (which is also denied) then the earliest that I could have received it would have been 22nd February 2008 as the document is dated 21st February 2008. As a result, the first assignment, between BCT and Marlin could not have been effective until that date at the earliest.

22.If the first assignment could not have been effective until 22/2/2008 then the second assignment which is purported to have occurred on 18th January 2008 was ineffective. The reason for this is that on the alleged date that the second assignment took place Marlin did not legally possess those rights that it was purporting to assign to the Claimant. The Claimant therefore has no right of action.

23.Further, as the second assignment is ineffective, the Notice of Assignment that was allegedly sent must also be ineffective as it describes an assignment that, on a proper construction, never took place as Marlin did not possess those rights on the date of the second alleged assignment.

  • Haha 1

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Excellent - thanks for that Nicklea, top stuff :)

 

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Michael


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Trying again with resized images

Edited by mcuth

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Ok, let's try that again.....

 

Now received the following order from the court, along with copy of Mortimer Clarke's letter to the court that prompted it:

 

scan0017.jpg

scan0016.jpg

 

 

I think they've got a bloody nerve to be honest - and the Court has by allowing them to get away with it :x

 

So, I'm reckon I'm going to knock up a cracking Defence - anyone got any views on the enforceability (or otherwise) of the agreement I added in this post?

 

Cheers

Michael


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I think they've got a bloody nerve to be honest - and the Court has by allowing them to get away with it :x

 

The more I think about this, the more I'm infuriated - the Court has single-handedly ignored almost every single point that I made in my Defence, including the breach of the Pre-Action Protocols (which means I need to photocopy all that stuff again).

 

Cheers

Michael


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