Bryan Carter And solicitors, how to defend ccj claim**WON**

[pt2537]

If you dont get the information that you need to defend the claim properly then you can file a holding defence which will basically put forward that they havent supplied the required info and that until they do you cannot submit a full defence

 

you need to ensure that your defence is with the court in plenty of time though

[icecool]

how much time do you suggest, if i am to claim i can't do a full defence without the required info? Also do you suggest putting in anything about the fact they are claiming a small amount of a larger debt?

[icecool]

Hi I've still not had anything back, and since mon is a bank hol, then i will have to see if if anything comes through the post. as wed is the deadline.Do you have any templates for the defence form if they do not send the cca in time. how do i write it, who do i address in the form: the judge?

[nicklea]

Hi icecool,

 

The defence needs to go to the court that was shown on the latest form that you've had from the court (it may still be northampton or you may have had a letter which says that the case is transferred to xxx court)

 

Here is a defence which I have adapted from one of pt2537's. This defence is written for a loan, but if it was for a credit card then the relevant section in paras 5 - 8 you need to change the details from s77 to s78, I'll post those details below.

 

I am in no way legally qualified, just an ordinary person like you who has done some reading here.

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxx- Claimant

and

 

you - Defendant

 

Defence

 

1) Except where otherwise mentioned in this defence I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5.

2) The claimant’s statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

b) 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 as laid out in Practice Direction 16. Paragraph 7.3.

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

Abuse of Process

3) It is also noted that the claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as I note the claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and it is requested that the court strike out this case as a clear abuse of the process.

The Credit Agreement

4) On the xx/xx/2007 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

5) For clarity, s77(1) CCA states:-

 

77. Duty to give information to debtor under fixed-sum credit agreement.

— (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.

 

6) S77(4) of the CCA sets out the consequences of failure to comply with such a request and states:-

 

(4) 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.

 

7) XXX have made no reply to this request.

8) Therefore it is averred that XXX has failed to discharge their obligations under s77(1) of the CCA and as a result has no right of action, by way of s77(4) of the CCA, to enforce this agreement while their non compliance continues.

Enforcement of the Agreement

9) For a credit agreement to be enforceable it must contain all of the prescribed terms as laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

10) The courts attention is drawn to the fact that where an agreement does not have the prescribed terms required by the CCA then it is not compliant with section 60(1) CCA and therefore not enforceable by s127 (3). The court’s attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

11) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

Failure to disclose documents relied upon in the Particulars of Claim

12) Further to the case, on xx/xx/xx I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on.

13) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

14) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists

Default Notice

15) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.

16) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.

17) Without prejudice to the above, I put 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.

18) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

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

© to recover possession of any goods or land, or

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

(e)to enforce any security

19) I note the opening part of section 88(1) CCA, which states:-

88. Contents and effect of default notice.

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

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

20) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

21) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

22) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”

23) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

Conclusion

24) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

25) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

26) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-

35. Division of causes of action.

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

26) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 11 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

28) In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

Statement of Truth

 

I, believe the above statement to be true and factual

 

 

Signed …………………

 

 

 

Name

Date

Name

Date

[nicklea]

1. On xxx I requested that the claimant provide a true copy of the executed credit agreement pursuant to s78(1) CCA.

2. For clarity, s78(1) states:-

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

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

(a)the state of the account, and

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

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

3. S78(6) of the CCA sets out the consequences of failure to comply with such a request and states:-

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

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

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

[icecool]

thanks nick, it is a big help to me. assuming i don't get the cca before the defence due date which is 9th may, shall i print and post it or send in on the online form. if online, do i have to send it during office hours. the court is still northampton.Also can i put a quote in it saying the debt could be statue barred, but that would mean acknowledging it right? so best to leave it out

[icecool]

does the above letter also apply for a bank account?

[BeauBrummie]

Hi Icecool,

 

Can't help with the defence but can give you some support. BC sent me a notice of discontinuance today and all the comments I have had back om my thread seem to point to not being able enforce the debt.

 

So again good luck.

 

BB

[icecool]

thanks beaubrummie. pt2537, is the letter vaild for a back account debt

[nicklea]

For a bank account leave out paras 4 to 11.

 

In your posts in sounded as though you were talinkg about a cc or loan. Can you confirm what this debt is for?

[icecool]

it is for a an old hsbc student account, with a overdraft, prob around 8 ago.

[icecool]

the defence is due on the 9th may, this wed, but i intend to send it in tmr. is it best to do it online or by post?i have not had any info back, either from a cca request or info request.actually no contact from bryan carters

[ukaviator]

Icecool

 

Are you putting in a counterclaim for the charges?. With 8% s69 interest added, you could have enough there to knock a large lump off the debt, if you do owe it that is.

 

If they supply the paperwork correctly, then you should consider this.

[icecool]

Hi. i was asked to pay back the student account, but i could'nt , so they defaulted my account. and they came up with a agreement where i had to pay back a certain amount each month. I have to send the defence letter today, i plan to submit it online, if everbody thinks it is fine to do that?I have no information back in terms off cca request or cpr request and the defence due date is tommorow.

[nicklea]

Icecool,

 

The defence will probably be too big to go on MCOL. You will probably need to post it.

 

Since it is a bank account, when they reply to your CPR letter (just to check - you have sent the solicitors a CPR letter?) you can include about claiming back charges as ukaviator says

[icecool]

Hi GuysI have wrote the defence letter, can you have a read and thoughts for improvements. thanks

[icecool]

In the Northampton County CourtClaim number: xxxxxxxxx BetweenLowell Portfolio 1Limited- Claimantandxxxxxxxxxxx - DefendantDefence1) Except where otherwise mentioned in this defence I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5.2) The claimant’s statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.b) 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 as laid out in Practice Direction 16. Paragraph 7.3.c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.Abuse of Process3) It is also noted that the claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as I note the claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and it is requested that the court strike out this case as a clear abuse of the process.The Credit Agreement4) On the 17/04/2008 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.5) Lowell Portfolio 1Limited have made no reply to this request.6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court7). The Claimant is therefore put to strict proof that such agreement existFailure to disclose documents relied upon in the Particulars of Claim8) Further to the case, on 17/04/08 I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including a copy of the Notice of Assignment required to give the claimant a legitimate right of action. 9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on 21/04/2008Default Notice12) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.13) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.14) Without prejudice to the above, I put 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. 15) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,- (a) to terminate the agreement, or(b) to demand earlier payment of any sum, or© to recover possession of any goods or land, or(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or(e)to enforce any security16) I note the opening part of section 88(1) CCA, which states:-88. Contents and effect of default notice.- (1) The default notice must be in the prescribed form....... The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.17) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.18) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29 ” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”19) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.20) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" ““That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”21) Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 11922) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)Conclusion23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR. 24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.25) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-35. Division of causes of action.It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.26) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.28) In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly29) In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced prior to 2006, Consumer Credit Act 1974 is the relevant act in this case. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any moniesStatement of TruthI, believe the above statement to be true and factual to the best of my knowledgeSigned …………………

[pt2537]

 

In the Northampton County Court

Claim number: xxxxxxxxx

 

 

Between

 

Lowell Portfolio 1Limited- Claimant

 

and

 

xxxxxxxxxxx - Defendant

 

Defence

 

1) Except where otherwise mentioned in this defence I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5.2) The claimant’s statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.b) 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 as laid out in Practice Direction 16. Paragraph 7.3.c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.Abuse of Process3) It is also noted that the claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as I note the claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and it is requested that the court strike out this case as a clear abuse of the process.The Credit Agreement4) On the 17/04/2008 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.5) Lowell Portfolio 1Limited have made no reply to this request.6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court7). The Claimant is therefore put to strict proof that such agreement existFailure to disclose documents relied upon in the Particulars of Claim8) Further to the case, on 17/04/08 I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including a copy of the Notice of Assignment required to give the claimant a legitimate right of action. 9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on 21/04/2008Default Notice12) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.13) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.14) Without prejudice to the above, I put 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. 15) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,- (a) to terminate the agreement, or(b) to demand earlier payment of any sum, or© to recover possession of any goods or land, or(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or(e)to enforce any security16) I note the opening part of section 88(1) CCA, which states:-88. Contents and effect of default notice.- (1) The default notice must be in the prescribed form....... The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.17) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.18) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29 ” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”19) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.20) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" ““That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”21) Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 11922) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)Conclusion23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR. 24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.25) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-35. Division of causes of action.It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.26) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.28) In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly29) In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced prior to 2006, Consumer Credit Act 1974 is the relevant act in this case. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

Statement of Truth

 

I, believe the above statement to be true and factual to the best of my knowledge

 

Signed …………………

 

 

Hi, it needs setting out properly, a judge will not be able to read letalone comprehend the points raised in the defence.

 

each point needs laying out seperatley,such as here http://www.consumeractiongroup.co.uk/forum/legal-issues/119326-capquest-court-summons-received-5.html#post1509853

 

im afraid that, while i have tried to seperate each point i have been unable to so i cannot pass any comment

[icecool]

hi pt, i will try to send again. i have set it out correctly but it merges together when i post it

[icecool]

it keeps on merging the lines, anybody help on this. trying to get word doc on this post.

[pt2537]

save it as text only in a new document then you will be able to cut and paste it

[icecool]

i am trying to do that but with avail. saved as a txt doc and cut and paste it but still merged

[pt2537]

ok, well email it to me, and i will sort it out for you

 

 

my email addy is

 

[email protected]

[icecool]

Hi PTi have sent the email to [email protected]

[pt2537]

In the Northampton County Court

Claim number: xxxxxxxxx

 

 

 

 

 

 

Between

Lowell Portfolio 1Limited- Claimant

 

and

 

 

xxxxxxxxxxx - Defendant

 

 

Defence

1) Except where otherwise mentioned in this defence I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules ("CPR") Part 16.5.

2) The claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

b) 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 as laid out in Practice Direction 16. Paragraph 7.3.

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

 

Abuse of Process

3) It is also noted that the claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as I note the claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and it is requested that the court strike out this case as a clear abuse of the process.

 

The Credit Agreement

4) On the 17/04/2008 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 ("CCA"). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

5) Lowell Portfolio 1Limited have made no reply to this request.

 

6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

 

7). The Claimant is therefore put to strict proof that such agreement exist

 

Failure to disclose documents relied upon in the Particulars of Claim

 

8) Further to the case, on 17/04/08 I requested the disclosure of information from the Claimant's solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

 

9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.

 

11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on 21/04/2008

 

Default Notice

12) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.

 

13) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.

 

14) Without prejudice to the above, I put 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.

 

15) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

 

S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

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

© to recover possession of any goods or land, or

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

(e)to enforce any security

 

16) I note the opening part of section 88(1) CCA, which states:-

 

88. Contents and effect of default notice.

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

 

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

 

17) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

 

18) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

19) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

 

20) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:

 

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage... If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take..."the next step" "

 

"That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. ... he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right."

 

21) Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

22) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

 

Conclusion

23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

 

24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

 

25) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-

 

35. Division of causes of action.

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

 

26) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

28) In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

29) In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced prior to 2006, Consumer Credit Act 1974 is the relevant act in this case.

 

Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

 

Statement of Truth

 

I, believe the above statement to be true and factual to the best of my knowledge

 

 

 

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

 

 

 

 

 

 

 

there we go