MCE/mortimer claimform - old British Credit Trust car finance debt

[mcuth]

Sent a letter asking for a breakdown of all charges applied since inception (April 2005) - not done under DPA as I still have a decent relationship with them, just no statements. Will pursue under DPA if necessary....

 

Cheers

 

Michael

[Bookworm]

And there he goes again!... A man after my own heart...

[mcuth]

And there he goes again!... A man after my own heart...

 

Awww, bless I just need to wait a little for funds to come in to start sending the prelims out via Special Delivery - the Post Office guy will absolutely love me when I go in with this lot

 

Cheers

 

Michael

[mcuth]

Sent letter today, chasing list of charges & asking if they want a Data Protection Act SAR instead

 

Cheers

 

Michael

[finman]

I will be intrested in this one, i too have charges from them for car finance. I requested the statements over the phone and got them the next day, i was shocked at how fast they got them out to me.

 

BCT nearly destroyed me with the charges they levied on my account, I have now issued a prelim letter to them.

 

Good Luck

[mcuth]

Received my list of charges today - total of £175.40

Need to wait til next week before launching another claim

 

Cheers

 

Michael

[mcuth]

Prelim letter sent today:

 

Thursday, 13th July, 2006

 

British Credit Trust

Windsor Gate

110 Bath Road

Slough

SL1 3SZ

By Royal Mail Special Delivery

Dear Sir/Madam

Agreement number XXXXXXXX

REQUEST FOR REFUND OF CHARGES

My request

I am writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of fees which you have applied to my account in relation to arrears, letters, and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

 

I am of the view that your charges represent a penalty and are therefore unrecoverable at Common Law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. The actual loss is the cost of automatically sending me a computer generated letter. I would respectfully submit that is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

On a separate note, your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). My account falls within the scope of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. Because your charges include a large profit margin, in addition to actual loss, they are unrecoverable as an unfair term in contract. I believe that your charges require me to pay a disproportionately high sum in compensation for incurring transactions which are ultimately prepared by an automated computer system. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now

 

What I require

I calculate that, as at today’s date, you have taken a nett total of £175.40 in these fees. I request that you refund this amount in full and enclose a schedule of the charges which I am claiming with this letter.

 

Targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard letters and leaflets.

 

You have 10 working days, from receipt of this letter (i.e. by Friday 28th July 2006), to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or do not respond positively, within this time period, I shall send you a further letter before action allowing a further 10 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that will be no further communication from myself and I shall issue a claim at the expiry of the second deadline.

I look forward to hearing from you by return.

Yours faithfully

 

{mcuth}

 

Cheers

 

Michael

[TBeckett100]

I asked for a settlement fig on my car loan , 4k and they sent it to me in writing.

 

i have now been *approved* for a 5k loan.

 

Apr 24.9%

 

bargain?????????

 

dont think so

[mcuth]

Letter received yesterday:

Dear {mcuth}

 

We write further to your recent letter regarding the charges that have been applied to your account.

 

We note your comments and would advise that our charges do represent a genuine pre-estimate of loss and are therefore not a penalty; furthermore the recent OFT statement relates purely to credit card agreements and not fixed sum loan agreements.

 

However, as a without prejudice, gesture of good will, we are prepared to remove £75.00 of the letter charges from your account. Upon your confirmation that this is acceptable these fees will be waived form {sic} the amount outstanding.

 

We trust that this is in order but if you have any further queries please contact us at the address below.

 

Yours sincerely

 

Mr Jonathon Furno

Fraud & Compliance Manager

 

LOL - they make me larf they do - I'll be writing an appropriate LBA back

 

Cheers

 

Michael

[mcuth]

LBA sent today:

 

Dear Mr Furno

Agreement number XXXXXXXX

REQUEST FOR REFUND OF CHARGES – LETTER BEFORE ACTION

Further to my letter of 13th July and your reply of 27th July 2006, I am again writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of “fees” which you have been applying to my account in relation to arrears, letters, telephone calls, and so forth are unlawful at Common Law, Statute and recent Consumer regulations. My letter of 13th July explains this in detail.

I also write to reject your goodwill payment offer - it is not the sum I require refunding - my letter of 13th July is very clear on what is required to resolve this issue – full payment of the sum of £175.40 debited in unlawful charges since account inception. Again, I enclose a schedule of the charges that I am reclaiming.

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

If you do not fully comply within 10 working days of receipt of this letter (i.e. by Monday 14th August, 2006), I shall begin a claim against you for the full amount (plus interest, plus my costs) without further notice.

I look forward to hearing from you by return.

Yours sincerely

 

{mcuth}

 

Cheers

 

Michael

[mcuth]

Received the following from BCT:

 

Dear {mcuth}

 

We write further to our recent correspondence regarding the charges that have been applied to your account.

 

We note your comments and would again advise that our charges do represent a genuine pre-estimate of loss and are therefore not a penalty; furthermore the recent OFT statement relates purely to credit card agreements and not fixed sum loan agreements. The OFT have offered guidelines for the credit card issuers advising that charges following a breach of contract/default should be set at £12.00. This is simply a guideline for these accounts and does not include fixed sum loan agreements such as yours.

 

Each letter charge applied to your account has been applied in accordance with the terms and conditions of the contract between us due to non-payment of the contractually agreed payment on the specified date. Therefore we have complied with the terms of the contract. However, as a final gesture of goodwill we would be prepared to reduce these fees to £12.00 each, giving a total of £48.00. This represents a reduction of £102.00 in the charges originally applied.

 

The Late Payment Surcharges are interest charged on the arrears that accrue on the account. This is clearly stated in clause 3 of the terms and conditions of your agreement. Therefore, by signing the agreement you agreed to this clause and these charges will not be removed or reduced. Further the date change fee is an administrative charge and will not be reduced.

 

This is our final response in this matter. Please confirm your acceptance of the offer of a reduction in charges of £102.00 by return. If you choose not to accept this offer and wish to continue with legal action then we look forward to receiving notification of the details for your legal representatives.

 

Yours sincerely

 

Mr Jonathon Furno

Fraud & Compliance Manager

 

Actually, he does have a point about the date change fee and the "Late Payment Surcharge" - I've removed those from my claim list and the value is now £150.00.

 

I think I'll accept this offer, but at the same time correct him on some of the statements he makes.....

 

Cheers

 

Michael

[mcuth]

Well I hope this makes a few points with him before I roll over on this one :

 

Dear Mr Furno

Agreement number XXXXXXXX

Your ref: XX/XXXXXX

Thank you for your letter of 3rd August 2006, the contents of which I note.

To quote from your reply “The OFT have offered guidelines for the credit card issuers advising that charges following a breach of contract/default should be set at £12.00” – you are incorrect in this statement. The OFT actually said that £12 is the limit point at which they would take action against a card company– to quote from their press release (http://www.oft.gov.uk/News/Press+releases/2006/68-06.htm):

“Where credit card default charges are set at more than £12, the OFT will presume that they are unfair, and is likely to challenge the charge unless there are limited, exceptional business factors in play. A default charge is not fair simply because it is below £12.” (my emphasis added)

Whilst the OFT’s guidelines were issued particularly in respect of credit card default charges, they are also mindful of other default charges across the financial services industry – to quote from their press release:

“The OFT now expects all credit card issuers to recalculate their default charges in line

with the principles set out in a statement published today and to take urgent action where needed to reduce the level of credit card default fees. The industry has until 31 May to respond to the statement. These principles also apply to default charges in other consumer contracts such as those for bank overdrafts, store cards and mortgages” (again, my emphasis added).

I would also point out that just because a clause is in your Terms & Conditions does not make it either lawful, or a fair contract term - notwithstanding the fact that a consumer may not be aware of this at time of signing.

Regarding your continued insistence that your charges do represent a genuine pre-estimate of loss, my original letter of 13th July asked you the following on this point: “If you say that they are not [unlawful], then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.” – I note that no such breakdown has been forthcoming.

I do, however, accept your points regarding Late Payment Surcharges & Date Change Fees.

I would also maintain that once a charge has been levied unlawfully (i.e. is a punitive charge disproportionate to the actual damages due to the breach of contract), then the whole of that charge is unlawful & unenforceable, not just a proportion of it.

However, notwithstanding the above, on review I am prepared to accept your offer of a reduction in charges by £102.00. Kindly confirm the new outstanding balance to both myself and PayPlan.

Many thanks

Yours sincerely

 

{mcuth}

 

 

Cheers

 

Michael

[dan-rides-bikes]

you write GREAT letters

[mcuth]

you write GREAT letters

 

Thanks

 

Cheers

 

Michael

[caro]

Another one sorted then. Well done.

[mcuth]

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

 

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 () 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?

 

Cheers

Michael

[pt2537]

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

 

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 () 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?

 

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"

[mcuth]

Hi Paul, fancy seeing you here

 

Well, looks like youre having fun Michael

 

Er yeah, that's one word for it

 

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

 

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"

 

LOL - yeah, me too

 

Cheers

Michael

[mcuth]

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

[pt2537]

You have email, it should help with the assignment issues

[mcuth]

You have email, it should help with the assignment issues

 

Thanks matey - much appreciated

 

Cheers

Michael

[pt2537]

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

[mcuth]

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

[mcuth]

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

[mcuth]

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

 

Cheers

Michael