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

[pt2537]

thread moved to the Legal issues forum

[mcuth]

Thanks Paul

 

Anyone got any comments on the draft Defence?

 

Cheers

Michael

[mcuth]

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

 

 

Cheers

Michael

[mcuth]

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

 

Cheers

Michael

[mcuth]

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?

 

Cheers

Michael

[mcuth]

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?

 

Cheers

Michael

[mcuth]

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

 

Cheers

Michael

[mcuth]

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....

 

Cheers

Michael

[mcuth]

Received the following letter from Mortimer Clarke:

 

 

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

 

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

 

 

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

 

 

Here's the "notice of balance outstanding":

 

 

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"?:

 

 

 

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:

 

 

 

 

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

 

Cheers

Michael

[mcuth]

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:

 

 

 

 

 

Here's the Notice of Assignment:

 

 

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

 

 

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

 

Cheers

Michael

[nicklea]

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.

[mcuth]

Excellent - thanks for that Nicklea, top stuff

 

Cheers

Michael

[mcuth]

Trying again with resized images

Edited June 12, 2008 by mcuth

[mcuth]

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:

 

 

 

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

 

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

[mcuth]

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

 

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

[nicklea]

Hi,

 

I think that I can understand why the court did this. Your defence was basically that they hadn't supplied any documents and now they have.

 

The important thing to remember is to get the amended defence in on time.

 

And of course, the fact that they've scr*wed themselves with doing the two assignments!

 

You can also question whether they sent you cancellation details as required. The burden of proof is on them in this case.

 

However, I would say that, having looked at the agreement and default notice, that if they got their act together and did all the notices of assignment correctly etc then (in my opinion) they would have an enforceable agreement.

[mcuth]

Hi Nicklea

 

I think that I can understand why the court did this. Your defence was basically that they hadn't supplied any documents and now they have.

 

Well, I could understand that if the defence didn't also detail that the PoC were embarrassing, insufficient, etc.., they hadn't complied with Pre-Action Protocols, and they hadn't complied with the s77 request (and still haven't).

 

The important thing to remember is to get the amended defence in on time.

 

Oh absolutely

 

And of course, the fact that they've scr*wed themselves with doing the two assignments!

 

Aye, that'll now be a major part of the defence (thanks )

 

You can also question whether they sent you cancellation details as required. The burden of proof is on them in this case.

 

Indeed - plus the Ts&Cs (which haven't been supplied)

 

However, I would say that, having looked at the agreement and default notice, that if they got their act together and did all the notices of assignment correctly etc then (in my opinion) they would have an enforceable agreement.

 

Thanks for that. The bits I have so far are that the Default Notice references the wrong date of the agreement and includes penalty charges (whacking great ones too), there are no Ts&Cs (which would detail their cause of action, given their limited PoC - and would also detail any right to claim PJI, which they are doing) or cancellation rights.

 

I'm just never quite sure about the Agreement itself...

 

Cheers

Michael

[mcuth]

Hmmm, my new Defence is going to be soooooooperb

 

Just one question here - anyone see a "total amount payable" or "total charge for credit" on that agreement they supplied? Someone tell me if I'm on the wrong track, but it looks like that might well be a missing prescribed term.....

 

 

Wouldn't mind opinions on the Default Notice too, please

 

Cheers

Michael

[mcuth]

Just one question here - anyone see a "total amount payable" or "total charge for credit" on that agreement they supplied? Someone tell me if I'm on the wrong track, but it looks like that might well be a missing prescribed term.....

 

Ok, maybe not a prescribed term as per Schedule 6, but it is listed as a term in SCHEDULE 1 (INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN

MODIFYING AGREEMENTS) - does that have any impact?

 

Cheers

Michael

[mcuth]

Ah well, need to get this out the door today, so for better or worse here's my new Defence:

 

1.Further to District Judge xxxxx’s order of 3rd June 2008, the original Defence (filed and served on 21st April 2008) has been struck out, and is therefore replaced in its entirety with the new pleaded Defence as below.

2.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 Pre-Action Protocols

3.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 s77 Consumer Credit Act (1974) - detailed in paragraphs 12-23 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”.

 

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

 

5.On or around 27th March 2008, the Defendant received a letter from the Claimant’s Solicitors, Mortimer Clarke Solicitors (“MCS”) dated 25th March 2008. This letter did not refer to the Claimant’s letter of 12th March 2008, but 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”.

 

6.MCS’ letter of 25th March 2008 at “Appendix 2” also states that “full details of which [this matter] have previously been provided to [you] by our client”. The Defendant avers that no communication from MCS’ client (MCE Portfolio Ltd, “the Claimant”) has ever been received.

 

7.The Defendant responded to MCS with a letter dated 28th March 2008, advising them to refer to the Defendant’s letter to MFS of 18th March 2008, a copy of which was attached for their reference. Further, this letter advised MCS 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” – this annex does not have the Defendant’s letter of 18th March 2008 attached as this is already annexed to this Defence at “Appendix 1”.

 

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

 

9.On or around 5th April 2008, the Defendant received an N1 Claim Form for this Claim, issued by Northampton County Court on 3rd April 2008.

 

10.The Defendant therefore respectfully submits that the Claimant has not complied with the Pre-Action Protocols. Inter alia, the Claimant has

 

10.1Failed to provide sufficient information required under the Pre-Action Protocols in order to investigate this claim;

 

10.2Failed to provide a reasonable time period required under the Pre-Action Protocols to investigate this claim;

 

10.3ignored and/or disregarded a claim that a debt is disputed and continuing to make unjustified demands for payment, as detailed in s2.6h of the Office Of Fair Trading Debt Collection Guidance - Final guidance on unfair business practices (July 2003 – updated December 2006);

 

10.4failed to cease collection activity whilst investigating a reasonably queried or disputed debt, as required by s2.8kof the Office Of Fair Trading Debt Collection Guidance - Final guidance on unfair business practices (July 2003 – updated December 2006).

 

11.The Defendant would respectfully draw to the attention of the Court the fact that he is now substantially prejudiced by this action, brought despite the Claimant’s non-compliance with the Pre-Action Protocols

 

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

12.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.

 

13.A copy of the request made is annexed to this Defence and annotated “Appendix 5(1)” & “Appendix 5(2)”

 

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

 

15.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.

 

16.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.

 

17.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.

 

18.The Defendant received no further correspondence regarding the request from either FIL or BCT. As a result, BCT (and FIL) were in Default of the request as of 11th December 2007. By virtue of s77(4) Consumer Credit Act (1974), as of this date, BCT and FIL were no longer entitled to take any action to enforce any alleged agreement.

 

19.Further, the Defendant respectfully submits that, as of 11th January 2008, BCT (and FIL) committed an offence under s77(4) Consumer Credit Act (1974).

 

20.The Claimant avers that the agreement has been properly assigned to them and therefore the Defendant avers that, by right of Assignment, the Claimant acquired the responsibility for satisfying the request - the validity of any alleged Assignment is detailed at paragraphs 35-43 below.

 

21.On or around 4th June 2008, the Defendant received a letter from MCS enclosing a copy of a purported Credit Agreement and statement of account. The Defendant avers that the supply of these documents does not satisfy the request made on 29th November 2007, inter alia:

 

21.1s77(1) Consumer Credit Act (1974) states (with Defendant’s emphasis):

(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.

 

21.2The copy Agreement supplied makes reference to terms and conditions affecting the Agreement, however no terms and conditions have been supplied;

 

21.3The copy Agreement supplied makes reference to details of cancellation rights, however no details of cancellation rights have been supplied;

 

21.4The Claimant has not sent a statement compliant with s77(1)(a)(b) ©.

 

22.The Defendant therefore respectfully submits that, by virtue of s77(4) Consumer Credit Act (1974):

 

22.1BCT were not entitled to take enforcement action by allegedly assigning the agreement to the Claimant;

 

22.2The Claimant was not entitled to take enforcement action by allowing MFS to act as collection agents on their behalf and demand payment (notwithstanding s2.6h and s2.8k of the Office Of Fair Trading Debt Collection Guidance - Final guidance on unfair business practices (July 2003 – updated December 2006) as detailed in paragraphs 10.3-10.4 above);

 

22.3The Claimant has no right of action in this matter until such time as the default is remedied and is therefore not entitled to take enforcement action by bringing this Claim;

 

23.The Defendant would respectfully draw to the attention of the Court the fact that he is now substantially prejudiced by this action, brought despite the Claimant’s non-compliance with the request.

 

The Particulars of Claim

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

 

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

 

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

 

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

 

27.1.1The 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, the 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.

 

28.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.

 

29.The Claimant’s Particulars of Claim make reference to an Agreement dated “22/04/2005”, yet the alleged Agreement relied upon and supplied with MCS’ letter of 2nd June 2008 is dated 07/03/2005.

 

30.The Claimant’s Particulars of Claim appear to rely upon terms and conditions of the purported Agreement, which has not been served attached to the claim form, nor with MCS’ letter of 2nd June 2008.

 

31.In the Particulars of Claim, the Claimant claims an amount of interest, then interest from the date of the Claim to Judgment, and further, post-Judgment interest. The Defendant respectfully submits that no breakdown has been made of how the amount of interest claimed is calculated, or the amount of interest to be calculated under s69County Courts Act (1984). The Defendant further respectfully submits that the Claimant has shown no entitlement to interest on sums outstanding, nor entitlement to post-Judgment interest by way of the terms and conditions of the Agreement relied upon.

 

32.Indeed, the statement of account supplied with MCS’ letter to the Defendant of 2nd June 2008 shows that the opening balance of the account was £3885. In the absence of a “Total Amount Payable” field on the alleged Agreement, the Defendant has calculated this to be 60 monthly repayments of £64.00 = £3840, plus the “Acceptance Fee” of £45.00. Therefore, all interest calculations are included in the original balance of the account and the Claimant has no basis for claiming extra interest.

 

33.The Claimant’s claim is in the sum of £3617.32 (plus interest, plus costs), yet the statement of account (and Notice of alleged Assignment) supplied with MCS’ letter to the Defendant of 2nd June 2008 states a balance of £3484.32. The subject of penalty charges is detailed in paragraphs 53–55 below, however there is no breakdown of how the Claimant has calculated any outstanding sums due in excess of that shown on the statement of account.

 

34.The Claimant makes no reference to fulfilling their obligations under s64 Consumer Credit Act (1974) and is put to strict proof thereof.

 

Assignment

35.Attached to their letter to the Defendant of 2nd June 2008, MCS include a copy of a Notice of Assignment that it is alleged was sent to the Defendant. The Law of Property Act (1925) is the relevant act that deals with the assignment of credit debts, and s136(1) Law of Property Act (1925) 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. It should also be noted that failure to execute an Assignment in accordance with the Law of Property Act (1925) renders the Assignment invalid and the Claimant would therefore have no right of action.

 

36.In their letter to the Defendant of 2nd June 2008, MCS state the following:

“Furthermore you require proof that the Default Notice and the Notice of Assignment were served at your address. We can confirm that the document [sic] was served at the property where you are the registered owner and as no returned mail was received from this address the Default Notice and Notice of Assignment are deemed served.”

 

The Defendant respectfully submits that MCS’ definition of service is considerably different to that determined by s196(4) Law of Property Act 1925, which prescribes the requirements for giving sufficient Notice of Assignment 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 the Recorded Delivery Service Act (1962) states that 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 (e.g. Royal Mail recorded delivery or special delivery).

 

37.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 pursuant to s196(4) Law of Property Act (1925) before action is commenced. It is denied that any Notice of Assignment was sufficiently served on the Defendant and therefore the Defendant respectfully submits that the Claimant has no right of action in this Claim.

 

38.Without prejudice to the above, for a Notice of Assignment to be effective, s136(1) Law of Property Act (1925) states that explicit Notice of Assignment must be given by writing under the hand of the Assignor. The Defendant notes that the alleged Notice of Assignment, dated 21st February 2008 and submitted on 2nd June 2008, refers to two separate assignments and was given under the hand of the Assignee in the case of the first assignment.

 

39.The Defendant respecfully submits 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, BCT (referred to in the document as “1st Assignor”). As a result, the first assignment is ineffective and the Claimant has no right of action.

 

40.Further to the above, or in the alternative, the Defendant submits that the second assignment is also ineffective. If the first assignment was effective (which is denied) and this document had been sufficiently served (which is also denied) then, as the document is dated 21st February 2008, the earliest that it could have been received would have been 22nd February 2008. As a result, the first assignment (between BCT and Marlin Capital Europe Ltd) could not have been effective until that date at the earliest.

 

41.If the first assignment could not have been effective until 22nd February 2008, then the second assignment, which is purported to have occurred on 18th January 2008, was ineffective because on the alleged date that the second assignment took place, the assignee of the first assignment (Marlin Capital Europe Ltd) did not legally possess those rights that it was purporting to assign to the Claimant. The Defendant therefore respectfully submits that the Claimant has no right of action.

 

42.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.

 

43.Without prejudice to the above, or in the alternative, neither of the Deeds of Assignment submitted by MCS with their letter to the Defendant of 2nd June 2008 show a schedule of agreements being assigned. Therefore it is impossible to determine whether any alleged agreement between BCT and the Defendant was included in any such alleged Assignments. The Defendant therefore respectfully submits that the Claimant has not proved that they have right of action in this Claim.

 

The Default Notice

44.The Defendant notes that MCS’ submitted a copy of an alleged Default Notice attached to their letter to the Defendant of 2nd June 2008.

 

45.Without prejudice to the foregoing, 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)

 

46.The Default Notice submitted refers to a “Date of Agreement” being April 22, 2005, yet the alleged Agreement relied upon and supplied with MCS’ letter of 2nd June 2008 is dated 07/03/2005.

 

47.The Default Notice submitted refers to a clause of the terms & conditions of the Agreement relied upon, yet no copy of the terms & conditions relied upon has been submitted.

 

48.The Default Notice submitted contains inaccurate address details for the Defendant.

 

49.The Default Notice submitted is dated 31st May 2007 and is in the sum of £2790.41 (including rebate) / £3264.64 (excluding rebate).

 

50.According to the statement of account submitted by MCS attached to their letter to the Defendant dated 2nd June 2008, the balance outstanding as at 31st May 2008 was £3198.09 with arrears of £894.09 (including the “letter charges” of £25.00 made that day).

 

51.The Defendant respectfully submits that the Default Notice is, therefore, inaccurate.

 

52.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 counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Penalty Charges

53.Without prejudice to the above, the Defendant avers that any amount claimed include unlawful penalty charges in the sum of at least £395.04 (without any breakdown of sums added further to the statement submitted on 2nd June 2008) and interest accruing thereon. These charges are detailed in the statement of account submitted by the Claimant on 2nd June 2008 and are as listed below:

 

15/07/2005

Date change fees

£25.00

16/10/2005

Letter charges

£25.00

04/04/2006

Letter charges

£23.00

08/08/2006

Late payment surcharges

£10.81

31/05/2007

Letter charges

£25.00

18/06/2007

Letter charges

£75.00

17/12/2007

Late Charges

£211.23

 

54.The Defendant contends that:

54.1These charges are punitive in nature and that the contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act (1977) and the common law;

 

54.2Insofar as they may be penalties, the charges debited to the Account are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Defendant;

 

54.3The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

55.The Defendant respectfully submits that the inclusion of penalty charges in the sums stated on the Default Notice, would further render the Default Notice inaccurate.

 

The Agreement

56.The Claimant has filed and served a copy of the alleged Agreement being relied on in these proceedings, which is attached to MCS’ letter to the Defendant dated 2nd June 2008.

 

57.Without prejudice to the foregoing paragraphs, the Defendant avers that the alleged Agreement does not contain the required information as determined by the Consumer Credit (Agreements) Regulations SI 1983/1553. Namely the items “Total charge for credit, rate of interest, etc.”, “Total Amount Payable”, “Timing of repayments”, (paragraphs 9-12 of Schedule 1 which should be included under a heading marked "Other Financial Information"); and “Charges” (paragraph 22) and “Amount payable on early settlement” (paragraph 24), both of which should be included under a heading marked “Key Information”

 

58.Without prejudice to the foregoing paragraphs, the Defendant avers that the alleged Agreement also does not contain the prescribed terms as required by the Consumer Credit (Agreements) Regulations SI 1983/1553.

 

59.The prescribed terms 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

 

60.The prescribed terms relating to repayments is missing from the alleged Agreement.

 

61.Part 6 (“Signing of agreement”) of the Consumer Credit (Agreements) Regulations SI 1983/1553 also states that the prescribed terms must be contained within the signature document.

 

62.In support of paragraphs 58-61 above, the Defendant cites the following from Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007). When reviewing the provision of Schedule 6 of the Consumer Credit (Agreements) Regulations SI 1983/1553, 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

 

63.The Defendant therefore respectfully submits that the Agreement relied upon is non-compliant with s60(1) Consumer Credit Act (1974) and cannot be enforced by virtue of s127(3) Consumer Credit Act (1974).

 

64.The Defendant avers that the Agreement is irrevocably unenforceable and the Court’s attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act (1974), the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) if applicable, then the agreement cannot be enforced.

 

Summary

65.For the avoidance of doubt, it is denied that the Defendant is liable to the Claimant in any manner and 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.

 

66.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the Office Of Fair Trading Debt Collection Guidance - Final guidance on unfair business practices (July 2003 – updated December 2006), the Defendant believes that the Claimant's conduct amounts to unlawful harassment under s40 Administration of Justice Act (1970). Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

67.Should the Court find that the Claimant has not complied with the Pre-Action Protocols, the Defendant would respectfully request that costs be awarded as per s2.3 of the Pre-Action Protocols.

 

68.In view of matters pleaded above, the Defendant respectfully requests that the Court give consideration to striking out the Claimant’s case pursuant to CPR 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.

 

69.If the Court considers it inappropriate to use its case management powers, it is respectfully requested that the Court orders the Claimant to produce original documents as detailed above before the Court. Without production of the requested documents, the case cannot be dealt with justly and fairly, and will severely prejudice the Defendant’s rights to a fair trial.

 

Statement of Truth

 

Dated this 20th June, 2008

 

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

 

 

Signed:

 

{mcuth}

Defendant

Cheers

Michael

Edited June 20, 2008 by mcuth
typo

[nicklea]

Ok, maybe not a prescribed term as per Schedule 6, but it is listed as a term in SCHEDULE 1 (INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN

MODIFYING AGREEMENTS) - does that have any impact?

 

Cheers

Michael

 

 

 

Hi,

 

I know this is a bit late, but stuff in schedule 1 that's missing means that the court can still enforce it but may - if it thinks it 's just - make any changes to the amount owing etc to compensate you for the prejudice you've suffered.

 

But to be honest, you don't hear that happening very much in reality.

[pt2537]

Rank Xerox v. Hepple [1994] CCLR 1 is one case where the court used its powers under S127(2) and lowered the amount owing under an agreement from £5000 to £500

 

so the court do use their discretion in certain cases

[mcuth]

Thanks guys, that may well prove useful later

 

Cheers

Michael

[mcuth]

Received the Claimant's AQ today - nothing remarkable except they're requesting a 1 month stay to attempt settlement. If settlement attempts fail, they're requesting standard SCT directions....

 

It'll be interesting to hear just what they're going to try and settle with

 

Cheers

Michael

[mcuth]

Received the Claimant's AQ today - nothing remarkable except they're requesting a 1 month stay to attempt settlement. If settlement attempts fail, they're requesting standard SCT directions....

 

It'll be interesting to hear just what they're going to try and settle with

 

As yet nothing received from either MCE in an attempt to settle or the Court giving any directions....

 

Cheers

Michael