Capquest/HL - claimform Cap1 debt *OH gave in £30PCM*

[DonkeyB]

Have a look through the threads 42man has posted above. There are some examples of 'embarrassed' defences in there, which basically say you've asked for the justification for the claim by way of evidence and haven't received it (ie. they've ignored your request).

 

AQ is allocation questionnaire - it's pretty simple, and we'll deal with that when we come to it. Getting your defence in is the priority.

[42man]

Roger, i'm going to say this with a disclaimer !! If it was me in your shoes I would use the first one in the links above.....i'm not an expert by any means, and we know it depends on the actions of the other side and what a judge is like on the day.....please also do have a read around these forums and you will become more knowledgable....

[creditcardmug]

Hi 42 and everyone, we went thro this a few months ago, i cant remember the thread, SH was involved a lot.

 

The point was, how was the defence presented to the court, there's only two possibilities.

 

1 By post, in which case it must contain a statement of truth signed by the defendant. (genuine sig, or copied/pasted by person unknown)

2 online, using the defendants password (not possible)

[DonkeyB]

Hi creditcardmug, good to have you aboard this one. Roger said it was the CPR request, sent to the court by post by HL, accompanied by a letter. No statement of truth, just a request from the claimant's solicitor (HL) to the court to accept the document as the defendant's defence. Smells to high hell.

[pt2537]

Ok, Roger, did you ask for any extension of time to be agreed for filing your defence?

 

Under the CPR , which many seem to miss, you can agree an extension of time to file your defence and the otherside has to concede this point , especially if you cannot plead a defence without certain documents

[rogermeard]

I didn't agree an extension, i think i have 28 days to file defence after claim against me?. HL have the CPR for 10 days and have not replied with the docs etc i requested.

[rogermeard]

Ok then, still no reply from claimant or solicitors regards CPR31.14.

 

I need to put in a defence, i'm guessing an "embarressed" defence, due to no reply about CPR 31.14.

 

I also have issues regards their docs or alleged docs previously supplied to me during the threatening phase, i definitely know that one has been tampered with.

 

Do i include that in my defence or just the standard "embarressed" defence?.

 

I need some help as i don't want to b£$ls this up and lose out on a technicality.

[creditcardmug]

Hi, when must you file this by? was it issued in Northampton/who is the claimant? is it a credit card/ loan, something else?

 

 

Just posting up the relevant bits

 

Monies due under regulated Credit Agreement number 222222222222222222

 

Between

 

????????????????? Limited and the defendant the benefit of which was assigned to the Claimant on ??/??/200?.

The Agreement terminated upon the Defendant(s) failure to comply with the terms of the Agreement and or the statutory Notice Of Default served by ???????????????? Limited.

The Claimant seeks interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 0.64.

Any payments or queries should be directed to the Claimant etc etc.(Tel)

Edited March 17, 2009 by creditcardmug

[rogermeard]

27th march i think? (sent the AOS back on the 2nd march).

 

The debt is a credit card.

 

claimant is C'quest for a c'one card.(using H L as solicitor)

 

Northampton bulk court centre

[creditcardmug]

Ok, have you had

 

1 Notice of Assignment?

2 Default Notice (if yes can you post it up or point me to it)?

3 Have you sent a CPR request for information?

[rogermeard]

We have had a letter from c'quest stating that they own the debt and in the same envelope was a letter allegedly from c'one stating they have sold the debt etc to c'quest. The letter allegedly from c'one is obviously not from them its terribly faded, not correctly addressed and is just on computer printer quality paper (not evn good quality).

 

I cannot recall recieving a Default Notice.....however we may have had one and mislaid it , as this has been banging on for 2 years.

 

I have CPR C'quest twice and both times recieved a very dubious version of an alleged "agreement" which is not correct. (i know this very very definitely!!!). Also some printouts of purchases/payments thats it.

[creditcardmug]

Ok, ill sort out a defence for this, standby

[creditcardmug]

When does the agreement date from roughly?

[rogermeard]

March 2004

[creditcardmug]

Did you make a CCA request, and did Cap1 comply?

[rogermeard]

Yep CCA'd them and got the usual dubious scanned alleged agreement and printout of purchases etc and a letter saying they have conformed to my request.

[rogermeard]

CCM PM sent.

[creditcardmug]

Almost finished the defence, was your CPR request under CPR 18 or 34.14

[rogermeard]

I have to apologise CCM, it appears after looking through my records that we haven't CPR'd them, we have CCA'd them. I did CPR 31.14 them after i put in the AOS.

 

Sorry.

[creditcardmug]

Thats no problem

[creditcardmug]

Have a read, ask any questions.........

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

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

 

2. 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.

 

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

 

4. 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 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 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.

 

d) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

e) . It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

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.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

( letter attached marked Exhibit A)

xxxxxxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms. ( letter attached marked Exhibit B)

 

10. I wrote to xxxxxxxxxxxxxx setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents.

 

11. On DATE I wrote to the claimant requesting information pursuant to CPR 31.14 to date the claimant has failed to respond to my request

 

12. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which 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

 

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 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

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing 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

 

14. 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."

 

15. 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

 

16. Notwithstanding points 12 and 13, 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

 

17. The claimant is therefore put to strict proof that such a compliant document exists

 

 

18. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

19. It is neither admitted nor 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.

 

20. Notwithstanding point 19, 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)

 

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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

22. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

23. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

24. 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.

 

25. Alternatively, Should the court order the claimant to produce the nessecary documentation. 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.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

Edited March 18, 2009 by creditcardmug

[rogermeard]

Blimey CCM, that is indeed a detailed defence. I will sort this out and amend tomorrow.

 

Should i leave it as long/near to the time limit as possible before sending this in or get it in asap?

 

Also thank you very much for your help and time put in on this, people like you and forums like this are indeed a real God send during times of extreme stress. Thank you.

[creditcardmug]

Your welcome, in view of the earlier problems, i suggest you send it by SD asap, i just hope the court accept it as your defence

 

Regards

[pt2537]

just a thought, but, there is no pleaded admission or denial, so, i would advise adding say before para 5,

 

Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

 

just something that i often add to Defences within my day job

 

Hope this helps

[creditcardmug]

Thanks pt, roger put that in there