Clarification re Statute Barred

[sequenci]

Section 5 covers credit cards.

 

Section 6 is for loans with no repayment schedule, as an example if I gave you a thousand pounds, the 6 years would run from when I write to you asking for the money back.

 

So, don't worry about s6, it has nothing to do with your query

[steven4064]

b) does not effectively ... make the obligation to repay the debt conditional on a demand for repayment made by or on behalf of the creditor ...

The minimum payment on your monthly credit card bill is effectively a demand for repayment, therefore this condition does not apply and (3) doesn't apply either as a consequence.

[letitbeme]

Hello sequenci,

And thanks for clarifying that point for me – I am going to use your comment from post 4 (outlined below) as part of my defence in reference to the claimant’s response paragraph 9

Page 2 Reply to Defence

http://i292.photobucket.com/albums/mm30/corcoj/linkdef2.jpg

To answer your query, if the time starts running from when the agreement was 'defaulted' creditors would NEVER send default notices out. It is suggested that the time starts to run from the date of default which would be where, under the terms of the agreement, the entitlement for the creditor to sue for the whole amount starts. Usually this may be after two or three missed payments although most people just assume it is from when the last payment was made.

A default notice is a procedural bar and has nothing to do with limitation periods.

' A cause of action can still accrue, i.e. time start to run, even though a claimant is prevented from suing by a statutory procedural bar which precludes the issue of proceedings '

This is a draft of my response to the claimant’s response (paragraph 9)

In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the (cause of action) default notice issue date ( ) and the date on which the claimant issued proceedings ( ), the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct and Nov 2000, and thus the limitation period had expired six years later in Oct and Nov 2006. Accordingly the proceedings issued in Mar 2007 had been commenced four months too late

 

 

As a matter of public policy Statute Barred provides certain limitations of time within which claims must be brought. Where the action is commenced in relation to a breach of a credit card agreement, the limitation period will be six years and will start from the date that the plaintiff acquired knowledge of the relevant breech of the credit card agreement.

What do you think sequenci , is this a firm nail in the coffin

 

Regards LIBM

[letitbeme]

Hi Steven - thanks for the rep.

 

I am just setting out the groundwork for my verbal rebuttal in court

Regards LIBM

[letitbeme]

Can someone help with completing Allocation Questionnaire N150

Blue is my response

Red is Help Needed

 

A Settlement

1 No

2 No

3 No

4 Reasons: I am disputing all of the claim

 

B Location of trial yes

My Local Court

 

C Pre action Protocols

NEED HELP IS IT YES/NO

If NO explain why? NEED HELP

D Casemanagment inf

 

What amount of claim disputed ALL OF CLAIM AMOUNT

 

 

Apps NO

 

Witnesses

Myself

Experts

 

 

No

No

No

No

Track

Small claims track

Reasons for my choice NEED HELP

E Trial or final hearing

1 Hour

Days when not able OK with this

F Proposed Directions

NEED HELP

G Costs NIL

H Fee NO

 

I Other info

Is this section relevant to draft order listed below - if it is . NEED HELP

 

 

 

In the ************* County Court

Claim number **********

 

 

 

 

 

 

 

 

Between

 

 

************* - Claimant

 

 

 

and

 

 

 

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

Now the Draft order for directions above is applicable to both the N149 and N150

 

 

 

Quote:

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

 

N149 / 150 **Allocation Questionnaire

 

 

 

 

Section G / H **- other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

**Edit as needed

 

now on the form in either Box G or H depending on the type of AQ you have, write the following.

 

 

Quote:

Please find the following attached to this allocation questionnaire;

 

1) Section G / H ** - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

[steven4064]

For C - if you sent prelim and LBA then put 'yes'

 

Reason for SCT - the claim is ) if > £5k putr 'although claim is >£5000 it is a simple case mainly based on matters of fact'

 

You could also add that the claim is over 6 years old and statute barred.

 

Proposed directionss - tick 'yes' and 'no'

 

Other information (used to be G/H, now I) - the stuff you have there.

Edited May 20, 2008 by steven4064

[letitbeme]

Hi Steven - Thanks for the help with N150.

Could you advise re my defence.

Do I have to submit a full defence with N150 or can I hang back till I receive a response to the draft order.

Regards LIBM

[steven4064]

Normally the defence goes in before the AQ. Did the claim not have a date for you to file a defence on it?

[letitbeme]

I sent a holding defence (28th Apr 08) and a request to ammend when docs where sent

[steven4064]

In that case wait until you receive the docs (if you ever do that is )

[letitbeme]

Steven - so is it ok to hold on the def or should I ammend. Paul was going to help but has a 2000 word signment .

[steven4064]

Have they sent any documents?

 

Is your holding defence posted anywhere?

[letitbeme]

Steven - See post 51 and attached within Post 51

[letitbeme]

Steven - Paul has just PM me said me wold drop in tomorow re def.

 

Regards John

[steven4064]

John

 

Thanks - I can't see what else you can do without further information

[letitbeme]

I have today recived Links AQ

The letter states “We confirm that we have requested a one month settlement in the event you would like to settle this matter before further costs are incurred. You thoughts Paul.

[rudy1]

hi, letitbeme, so sorry had real problems trying to get things scanned, but my friend gets from LA today and will be able to do it. Also take a look at 9lives thread, his claim by link got thrown out, they were given 7 days to produce info at the allocation hearing. Take a read, gives you hope. Promise i'm on the case will get documents scanned.

[pt2537]

Hi LIBM

 

Ok this is where im at currently, i will update this post as i progress with the defence

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

Link- Claimant

 

and

 

 

LIBM - Defendant

 

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. this amended defence is intended to replace the defence dated xx/xx/2008 ion its entirety and is submitted with the approval of the claimant as set out in point 11 of the claimants reply to defence dated xx/xx/2008

 

3. 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.

 

4. The defendant still contends that the claimants statement of case is prima facie insufficient,

 

5. Despite the claimants reply to the original defence lodged xx/xx/ 2008, the claimant has still failed to provide any proof of service of the Notice of Assignment required by section 196 Law of Property Act 1925. It is a procedural requirement of the Law of Property Act 1925 to serve a Notice of Assignment via registered post and until such time that good service is effected the assignment is not valid

 

6. No notice of assignment was received as suggested by the claimant in point 4 of the reply to defence. In fact no notice of assignment has been received until after proceedings were started and the defendant is of the belief that the claimant would not be entitled to bring such an action in their name unless the assignment had been effected correctly before litigation had commenced. Accordingly the defendant puts the claimant to strict proof that the notice of assignment was served in the manner prescribed by the Law of Property Act 1925 and the defendant requires sight of such proof of posting

 

7. Furthermore there are clear discrepancies in the dates on the letters sent by the claimant and MBNA. On letter dated 7th September 07 it makes clear reference to the account being sold by way of assignment to Link on19 May 2004. However on the claimants reply to the defendants defence the claimant clearly states at point 2 that the account was assigned to them on 19th November 2001.

 

8. Furthermore, the claimant cites in point 4 that letter of assignment was sent to the defendant on 30th June 2005 some four years after the debt was acquired. According to WF Harrison & Co Ltd v Burke [1956] 2 All ER 169 it has been held that if the date of the assignment is wrongly stated the notice is ineffectual. It may also be ineffectual if it does not state the amount of the debt correctly again WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, obiter per Denning LJ.

 

9. Accordingly the defendant puts the claimant to strict proof that notice of assignment was served, containing the correct date and also correct figures of debt owing per WF Harrison & Co Ltd v Burke [1956] 2 All ER 169.

 

10. The claimant offers no particulars as to how the sums contained within the particulars of claim are calculated; merely stating that an amount is owed is insufficient. The defendant requires clarification as to how the debt is calculated, details of all sums claimed to be owed and proof of payments received over the relevant period from the date of the agreement to the date of claim

 

 

11. The claimant appears to be speaking on behalf of a third party in claiming that MBNA issued a default notice on 20th August 2001, yet the claimant is unable to provide any documentary evidence of such. Furthermore the claimant has failed to provide any supporting proof that such default occurred in the first place or that such date of default is infact correctly stated

 

12. Furthermore since the claimant is unable to provide statements showing payments made onto the account for the period that they claim such default occurred, the defendant puts the claimant to strict proof that such default occurred on the date claimed or at all

 

13. The defendant is still of the belief that section 5 of the Limitation Act 1980 is relevant in this case. In the claimants reply to defence they state that they believe that the debt is not statute barred by the Limitation Act 1980 and that the cause of action arose on 20th August 2001 however the claimant offers no proof of such event and the defendant further avers that the cause of action in such matters is not at the point where MBNA demand repayment but the point in which the right to demand repayment occurs, the claimants contention is absurd

 

14. The cause of action is when a right of action occurs, under a contract it is where the breach of contract occurs and monies become payable. It is not however where the creditor demands payment as it is conceivable that a creditor may not immediately demand monies and could wait which on the claimants contention would extend the 6 year period in favour of the creditor which the defendant suggests is incorrect

 

 

 

 

15. Notwithstanding matters already pleaded, On xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit

 

 

16. For clarity, section 78(1) of the Consumer Credit Act 1974 states

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

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

 

(a)the state of the account, and

 

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

 

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

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

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

 

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

 

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

 

 

18. In response to the request made on xx/xx/2007 the claimant supplied a document annexed to this defence marked xxxxx , which it claimed to be the credit agreement. However, the document supplied is extremely illegible and as a result the defendant is unable to make any assessment of the document supplied nor is the defendant able to accept that the document supplied complies expressly with the requirements of the Consumer Credit Act 1974 or the subsequent Regulations made under the Act. In fact the document supplied does not even comply substantially with the requirements of the Act

 

19. Notwithstanding the above, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) clearly and unambiguously set out the requirements of a copy document.

 

20. Statutory instrument 1983 / 1557 states at regulation 2

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

.

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act without any alteration or addition, except that--

 

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and (b) every Form shall be completed in accordance with any footnote.

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

Therefore, a copy document to comply with the requirements of a section 78(1) request with regards to its form must be to quote the regulations "be easily legible"

 

 

21. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement which is easily legible is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

22. The claimant is seriously mistaken if it is of the belief that a mere signature on a document qualifies it as an enforceable credit agreement. There is a significant amount of legislation which the agreement must be measured against and be completely compliant with before the court can even consider the issue of enforcement. I will outline the legislation and case law which sets out the requirements of an regulated credit agreement

 

23. Since the documents supplied as requested pursuant to the Consumer Credit Act 1974 have not been supplied in a compliant form, notwithstanding the fact that the defendant believes the monies are statute barred by section 5 Limitation Act 1980, I deny that I am liable in law to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

 

 

24. Notwithstanding point 21 that the claimant is not entitled as matters stand to this action. The courts attention is drawn to the fact that the without disclosure of a easily legible agreement where all the terms can be easily identified and read without ambiguity, I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

 

 

25. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

26. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

 

27. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

28. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms do not appear to be within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. in addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

29. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

30. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

 

31. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

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

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

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

 

33. should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit xxxxx) unenforceable

 

34. The documents supplied do not even attempt to comply with the requirements of the Consumer credit act 1974 there is not even partial compliance. I also note that there are many other pieces of legislation which relate to document retention inter alia-

 

35. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

36. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

37. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

38. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

39. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

40. If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

41. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf ) which states

Default Notice

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

42. Notwithstanding matters already pleaded, the Consumer Credit Act 1974 sets out in s87 (1) that a creditor must issue a default notice before it can become entitled to demand repayment due to a breach of the agreement on the debtors part.

 

43. I do not remember ever receiving a Default Notice in the prescribed format and the claimant it appears is unable to provide any substantive proof that such document was sent in the required form

 

44. Mere suggestions that MBNA sent a notice does not prove that the default notice was sent nor do they show that such notice was in the prescribed format, giving the prescribed timescale to remedy any default or that the notice was complaint with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

45. Notwithstanding the above, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

46. 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 section 87(1) CCA 1974 which states

(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.

47. I note the opening part of section 88(1), 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

 

48. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

49. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 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 comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it stands to reason that with such weight attached to a Default notice under the Consumer Credit Act 1974 and the regulations that the claimant would surely be able to produce a copy of the document to show that it was indeed complaint with the legislation as it is not acceptable to merely assume that such a document would have been sent and would have complied. Accordingly the claimant is placed to strict proof thereof that the documents were sent and were compliant as laid out above

 

 

 

In conclusion,

 

 

 

50. 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 disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

51. There are such glaring errors in the claimants statement of case and reply to defence that the claim has no real genuine prospect of success as it stands and the defendant further requests the court exercise its powers pursuant to CPR 3.4 (2) (a) ,(b) & © and strike out the claimants statement of case accordingly on the grounds set out within this defence

 

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

 

53. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of statements howing how the sums claimed accrued , a copy of the credit agreement in a legible form showing all the terms of the contract clearly in compliance with the Consumer Credit Act 1974 and copies of all other documents requested through this defence

 

 

54. I respectfully ask the permission of the court to amend this defence should the claimant disclose any further documents

 

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

 

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

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

56. Furthermore the defendant asks the court to consider the issue of costs should the court strike out the claimants statement of case and the defendant will supply a particularised schedule of costs incurred to the court as soon as necessary

 

 

:

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

 

i think that pretty much covers everything,

 

 

have a read through and any questions please ask away

 

i havent spell checked it (sorry ) and i havent proof read it as i am exceptionally busy currently but if you need anything shout

Edited May 22, 2008 by pt2537

[letitbeme]

Paul I would have never been able to outline so clearly the points put forwarded in a month of Sundays - I await with anticipation.

Regards LIBM

[pt2537]

ok there we go

 

hope that helps:)

[letitbeme]

Paul -

I am truly gob smacked - I have just finished reading - I am now going to the fridge for a cool glass (large) of wine before I re read the defence . Will get this of to court and Link in the morning. Will update when I receive a rep from Link and court. Paul you truly are an asset to this forum .

Thank you Paul for all of your help.

Regards LIBM

[steven4064]

Paul you truly are an asset to this forum

careful, he'll be wanting a pay rise

 

 

 

 

 

 

 

 

 

 

 

(I agree BTW )

[letitbeme]

I have today handed in my AQ – Draft Order – and amended defence to Court.

Will update when I receive a response.

 

Regards LIBM

 

 

In the xxxxxxx County Court

 

 

 

Claim number xxxxxxx

 

 

 

 

 

 

 

 

Between

 

Link Financial Ltd. - Claimant

 

 

 

and

 

 

 

 

 

xxxxxxxx - Defendant

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Clear Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Copies of Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

Claim number xxxxxxx

 

 

In the xxxxxxx County Court

 

 

 

 

 

Between

 

Link Financial Ltd. - Claimant

 

 

and

 

xxxxxxxx- Defendant

 

N150 Allocation Questionnaire

 

Section I other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

1. Despite the claimants reply to the original defence lodged 20th April 2008, the claimant has still failed to provide any proof of service of the Notice of Assignment required by section 196 Law of Property Act 1925. It is a procedural requirement of the Law of Property Act 1925 to serve a Notice of Assignment via registered post and until such time that good service is effected the assignment is not valid

 

2. No notice of assignment was received as suggested by the claimant in point 4 of the reply to defence. In fact no notice of assignment has been received until after proceedings were started and the defendant is of the belief that the claimant would not be entitled to bring such an action in their name unless the assignment had been effected correctly before litigation had commenced. Accordingly the defendant puts the claimant to strict proof that the notice of assignment was served in the manner prescribed by the Law of Property Act 1925 and the defendant requires sight of such proof of posting.

 

3. Furthermore there are clear discrepancies in the dates on the letters sent by the claimant and MBNA. On letter dated 7th September 07 it makes clear reference to the account being sold by way of assignment to Link on19 May 2004. However on the claimants reply to the defendants defence the claimant clearly states at point 2 that the account was assigned to them on 19th November 2001.

 

4. Furthermore, the claimant cites in point 4 that letter of assignment was sent to the defendant on 30th June 2005 some four years after the debt was acquired. According to WF Harrison & Co Ltd v Burke [1956] 2 All ER 169 it has been held that if the date of the assignment is wrongly stated the notice is ineffectual. It may also be ineffectual if it does not state the amount of the debt correctly again WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, obiter per Denning LJ.

5. Accordingly the defendant puts the claimant to strict proof that notice of assignment was served, containing the correct date and also correct figures of debt owing per WF Harrison & Co Ltd v Burke [1956] 2 All ER 169.

Claim number xxxxxxx

 

6. The claimant offers no particulars as to how the sums contained within the particulars of claim are calculated; merely stating that an amount is owed is insufficient. The defendant requires clarification as to how the debt is calculated, details of all sums claimed to be owed and proof of payments received over the relevant period from the date of the agreement to the date of claim

 

7. The claimant appears to be speaking on behalf of a third party in claiming that MBNA issued a default notice on 20th August 2001, yet the claimant is unable to provide any documentary evidence of such. Furthermore the claimant has failed to provide any supporting proof that such default occurred in the first place or that such date of default is in fact correctly stated.

 

8. Furthermore since the claimant is unable to provide statements showing payments made onto the account for the period that they claim such default occurred, the defendant puts the claimant to strict proof that such default occurred on the date claimed or at all

 

Without production of the requested documents, puts me at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to givenotice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this documentation must be disclosed before this case can progress any further

 

Statement of Truth

 

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

 

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

 

Date 26th May 2008

 

[rudy1]

well letitbeme, you've really been on the case, defence is fantastic, sorry i didn't get defence scanned but it was basically the cca letter which they took as defence. I have my allocation hearing at the end of july. Haven't heard from my friends at link for ages now, what i think my best way forward is, copy most of your defence as basically i haven't got one and i'm going to write an aggressive letter to Link advising them to close their files before allocation hearing as i will be bringing a solicitor and it will start costing them money as they are going to lose and i will claim expenses, but then i'm almost looking forward to going in a sick kind of way, from something which was almost making me ill with worry i feel totally unfazed now, still absolutely no evidence. I am right in thinking that even if the judge thinks i am guilty they can't actually do anything as to date i still to not have a scrap of evidence. I do feel angry as i feel they ruined the first few weeks with my new born, i should of been enjoying him but was just so worried i could focus, maybe the fact that i had just had a baby when they contacted me that i took it so badly (tired, hormones)but it was a very black time. i was obsessed, very angry about that. Anyway hopefully our cases will be over in a couple of months and we can celebrate online. Will keep you posted.

[letitbeme]

Hi Paul, I have today 07-06-2008 received a letter from link and attached was a screen dump and a reconstructed letter of assignment that they say they sent on 30th Jun 05, there is no confirmation of postage nor any reference to the default notice that MBNA are supposed to have sent me on 20th Aug 2001 and they still ascertain that the cause of action arose on 20th Aug 2001. If you get a chance to have a look at my post at

 

http://i292.photobucket.com/albums/m...inkletjun4.jpg

 

http://i292.photobucket.com/albums/m...screendump.jpg

 

http://i292.photobucket.com/albums/m...rcoj/noa05.jpg

 

 

I would appreciate hearing your comments as to the legal aspects in relation to the latest twist.

 

Regards LIBM