Help required with defence against barclays CCJ

Lushbury · April 30, 2008

can any one please help, i have recieved CCJ from Barclays and need to file defence.

I sent them a request for SAR and also asked them for a true signed copy of my agreement for a loan i took out with them and they have not supplyed, instead they send me a CCJ.

Is there a defence for this? i am fighting them on bank charges and they have closed my account and called in the loan.

locutus · April 30, 2008

I think this may help.

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

I had something very similar with RBoS happen to me, even though my case is stayed to recover the unlawful charges that would more than cover the alleged debt! I filed a defense and they dropped the case like a hot potato.

Good luck and read around in this site a bit.

**MARTIN3030** · April 30, 2008

Hi Lush welcome to the site.

There are procedures that need to be followed before actions.

Was you issued with a default warning ...and was that acted upon?

At what stage did you request the SAR and the info under the CCA and when did you send it...have you got proof of delivery of it ?

I will move your thread please be prepared to give some more detailed info so that you can be advised to go forward from here.

Lushbury · May 6, 2008

Martin, sorry for delay, i have been checking through all my paper work, and i can not find any default warnings from Barclays.

I sent them a CCA on the 22nd of Feb and a SAR on the 29th of Feb, they have not supplied me with a true and signed copy of my loan agreement.

I am running out of time and need to get my defence in ASAP.

Also they have not replyed to my SAR, it was faxed and sent in the post to them, they have acknowledged reciept of my letters.

debt4get · May 6, 2008

I am not sure and am hoping someone with a bit more experience comes along but as I understand it, non compliance of a cca is an absolute defence, also if you are looking at an SAR then I presume you will be going along the unfair charges route, which again you could use as a counterclaim, like I said I am no expert and if I was you Id have a read around but by not supplying the cca within 12 working days they shouldnt have issued the ccj

42man · May 6, 2008

ok you need to acknowledge the claim within 14 days of the date on the papers, then you get another 14 days to submit your defence.....I'm not an expert of CCJ cases but the first thing to do is send the opposing solicitor this by RECORDED/GUARANTEED delivery....

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

Dear XXX

REQUEST FOR INFORMATION

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

3. Any other documents you seek to rely on in court.

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

Yours sincerely,

XXXX (type, don't sign).

**MARTIN3030** · May 6, 2008

Ok.Looks like they have either overlooked it or else are stalling.

Would be worth a call to Barclays data protection..I think you would get it quickly if you brought it to their attention.

They were given longer to respond to Barclaycard SARS following their Microfiche saga but it did not apply to Bank accounts or loans.I called them when mine did not turn up and it was sent by carrier in 24 hours and cost them a few bob.

They will argue probably that the default process was carried out by the book but both a SAR and full CCA request would flag up this.If they have closed your account and called in the loan because you are claiming charges then you can bring this matter to the attention of the FOS..they have been warned already about this and been fined too.

CCjs are extremely difficult to have removed and will normally only be removed if there were mistakes with the names or it was registered with innacuracies.

However that does not mean its not impossible.

Whats the deadline for your defence to be in by ?

excel1 · May 6, 2008

Sorry to clarify you have recieved a county court summons, or a judgement as you have asked for a defence i presume its a summons?

nicklea · May 7, 2008

Also, can you confirm if this is for an overdraft or a loan

Lushbury · May 7, 2008

A summons, and its for the loan. i need to get defence in asap. the dead line is tomorrow, HELP!

ukaviator · May 7, 2008

Hi Lushbury

I would get the case set aside and file a counterclaim for charges and an interest refund.

You should fill out form N244 giving all of the details relating to your county court judgement, and give a reason for having the judgement set aside. This would be, lack of information supplied, lack of co operation by the company, the S.A.R that they have failed to supply. There is a cost for filing this, i think it's £35.

To be able to start your counterclaim, you need to fill in the form N11 and file as The Defendant. You can defend the claim and go on the offensive by making a counterclaim, technically known as a "Part 20" claim because it is regulated by Part 20 of the CPR. (Civil Procedure Rules).

The problem is, to file the N11, you need the account statements to find out how much they owe. Did you send £10 with the initial letter for your S.A.R..?

Also, how much is the loan?

42man · May 7, 2008

ok i've cut and pasted this defence and made a few alterations - but PLEASE HAVE A GOOD READ !!

In the Northampton County Court

Claim number 7XXXXXXXX

Between

XXXXX - Claimant

and

XXXXXX - Defendant

Defence

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.

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised.

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 any written agreement 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.

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.

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet
On xxxxxxx (date) I sent to the claimant by recorded delivery a request under the Consumer Credit Act 1974 section 78(1) for a true copy of the executed Credit Agreement. This was received by the claimant and signed for as such on xxxxxxx (date)
In addition on XXXXX (date) I sent to the claimant a subject access request for information to enable a suitable defence information and copies of all the documentation they sought to rely on in court to include a copy of the executed credit agreement along with all records they hold on the claimant including true copies of default notice and deed of assignment along with a genuine copy of any notice of fair use of data as required by the Data Protection Act 1998. This was received and signed for on XXXXX (date)
The claimant has failed to supply any documents which they intend to rely upon in this case

8. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules 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). 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

The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts 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

Notwithstanding points 8 and 9, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
The claimant is therefore put to strict proof that such a complaint document exists
The request for the alleged credit agreement was made under section 78(1) running account credit, of the Consumer Credit Act 1974. The prescribed time limit for furnishing a copy of the alleged credit agreement is twelve working days from receipt of the request, as stipulated in Regulation two of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.
The claimants were legally obliged to furnish a copy of the alleged credit agreement by the XXXXX (date)
Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, should the claimant fail to provide the documentation in response to my s78 (1) request by the XXXXX (date) the Claimants may commit a criminal offence as the default will have continued for a period of one month as described in s78 (6) (b). Since the claimant has issued proceedings without producing the requested documentation to support their case I would contend that the Claimant’s are acting vexatious and their conduct may amount to unlawful harassment contrary to s40 Administration of Justice Act 1970
I have not received any defaults for the alleged debts from the creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.
It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
Notwithstanding point 16, 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)

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
Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

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.
Having instigated these proceedings without any legal basis the claimant has failed to provide sufficient information required to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

I request that under the Civil Procedure Rules that the claimant provide the following: