Help!

[palomino]

OH DEARY ME

 

MR Carter why do you churn out such rubbish? dont you know that this is a blatant abuse of the court process?

 

 

 

Curious question : why does the court allow it?

[babybear39]

Curious question : why does the court allow it?

 

Because a lot of courts/judges don't know enough about this sort of thing. Which is why they should be defended.

[nicklea]

Also, because it's done through Northampton no one actually checks it or "allows" it - it is just done automatically online. So if it isn't defneded then the defendant loses automatically and a court never actually sees it until/unless there's the question of getting the judgment enforced.

 

If I knew your name and address, I could go online now, pay my money and issue a court claim saying that you owe me £300. If you didn't defend it then you would get a CCJ and I would end up with you having to pay me £300 - isn't MCOL great!

[babybear39]

Wtf!

[tiglet]

It's true - you can easily get a CCJ through on the nod, as it were, if it is not defended - no-one asks you to provide proof, it's up to the defendant to dispute it and ask for proof (or a judge if it actually makes it to court).

 

If a claim is just ignored, no matter how spurious, a judgement by default can be entered.

[pt2537]

Hi

 

I see that the claim is brought by Phoenix Re Fredricksons

 

but have they told you that they are now the owners? as i saw reference to BCW not phoenix ,

 

if phoenix or BCW et al have not told you that they now own the debt, then that is a very important part of your defence as you can actually state that you do not know of any indebtedness with the claimant nor their representatives

 

the defence i posted for awakenow is the one which i will base this on but it would be helpful to know the answer to the questions above

 

also can you clarify what this debt is for?

[Dispirited]

Hi Paul

 

Looking back through the paperwork, Buchanan Clark & Wells defaulted on the CCA request in September 2007. They sent a couple more threatening letters after CCA request in July 07, but from mid-August onwards all went quiet.

 

In November 07 we got a letter from Fredrickson just saying they'd been instructed a Phoenix Recoveries to collect the debt. We sent an 'Account in Dispute' letter. Then letters from Bryan Carter started arriving around March '08. We sent an 'Account in Dispute' letter. Also, Fredrickson wrote again so we sent a 2nd 'Account in Dispute' letter to them but all were ignored.

 

(Debt is for personal bank account.)

[pt2537]

Hi Paul

 

Looking back through the paperwork, Buchanan Clark & Wells defaulted on the CCA request in September 2007. They sent a couple more threatening letters after CCA request in July 07, but from mid-August onwards all went quiet.

 

In November 07 we got a letter from Fredrickson just saying they'd been instructed a Phoenix Recoveries to collect the debt. We sent an 'Account in Dispute' letter. Then letters from Bryan Carter started arriving around March '08. We sent an 'Account in Dispute' letter. Also, Fredrickson wrote again so we sent a 2nd 'Account in Dispute' letter to them but all were ignored.

 

(Debt is for personal bank account.)

oh, the debt is a bank account? in that case a cca request is rather pointless as bank accounts are not covered by the CCA in the same way that Credit cards,loans and hire agreements are

 

you can still defend as BC have split the cause of action but i fear that they may make an application to resubmit a new set of particulars when they realise

 

is it definalty a bank account and not a loan or credit card?

[babybear39]

These numpties take a lot of getting through to. They're breaching OFT guidlines so report them to everyone ASAP. Regardless of the account, if it's in dispute they cannot keep passing it on.

[Dispirited]

Paul, it's a personal loan. Several default letters served under Section 87 (1) the CCA 1974 state 'Further Action - Recovery of moneys outstanding under this loan agreement....'

 

 

babybear, yes you're right. As soon as we've got this defence posted I'll be on to it.

[pt2537]

Paul, it's a personal loan. Several default letters served under Section 87 (1) the CCA 1974 state 'Further Action - Recovery of moneys outstanding under this loan agreement....'

 

 

babybear, yes you're right. As soon as we've got this defence posted I'll be on to it.

ok then its game on

 

so ,i know im gonna sound like a scratched record here but can i just check, have you ever had anything from Phoenix telling you that they now own the debt

 

where im coming from here is this

 

i could write to you and say that i have been asked by X to chase you for payment but would you pay me til you know you actually owe me and what it is im claiming for?, in this case fredricksons are saying that phoenix have told them to chase you, but has anyone be it BCW or Phoenix told you that they have brought / sold the debt? they need to follow procedures

[pt2537]

oh forgot to say, im off out this afternoon over to the outlaws

 

if you could clarify the question ive asked IE did Phoenix tell you they had brought the debt at anytime that would be great

 

also have you ever had a letter before action from them or BC telling you they are launching court proceedings

[Dispirited]

I've just had another look because I wanted to be 110% sure.

 

No, definitely nothing from Phoenix. Just Fredrickson letter dated 13 Nov 07,

 

 

'Dear Sir / Madam

 

Re: Phoenix Recoveries (UK) Ltd

 

We are instructed by Phoenix Recoveries (UK) Ltd S.a.r.l to recover the outstanding balance on your account. All future payments must now be directed to this office. We look forward to hearing from you with your payment proposals. Plese note if you do not contact us within 7 days our instructions are to take further action for recovery.

[pt2537]

Ok well leave it with me, im sure that i can come up with something to despatch these mcmuffins

[pt2537]

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- 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. I am unaware of any indebtedness with the claimant Phoenix Recoveries (UK) Ltd S.a.r.l or its representatives Bryan Carter's solicitors. The only correspondence I have received in relation to this issue was a letter from a company called Fredricksons purporting to be representatives of Phoenix Recoveries (UK) Ltd S.a.r.l. a copy of the letter referred to is attached to this defence Marked Exhibit Dispirited 01

 

3. Accordingly since I have not been officially informed by way of Notice of Assignment that these companies have a legitimate claim to any monies owed by myself I deny that I am indebted to them and further more place them to strict proof that such debts exist

 

4. Notwithstanding the above, 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.

 

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

 

6. 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 Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt 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.

 

 

7. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

 

Preaction protocols and the claimant's failures to comply

 

8. The courts attention is further more drawn to the fact that the claimant has failed to comply with the Pre Action protocols in particular Para 4.3 insofar that no letter before action / claim was issued or received, the defendant feels this in itself is an abuse of the process as the defendant has not had the opportunity to investigate the claimants claim before the present litigation.

 

 

 

Abuse of the process

 

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

 

 

 

The Request for Disclosure under the CPR

 

10. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement between and any default or termination notices, 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 any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

11. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2008

 

 

12. 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

Credit agreement

 

13. I am assuming in the absence of clarification from the claimant as laid out above in point 9-11 that the agreement which the claimant refers to is that of a credit agreement. Accordingly I have asked for production of the agreement, which the claimant cites as being the basis of this litigation and the claimant has failed to provide such documents. Therefore without production of the agreement which the claimant bases this claim I am placed at a disadvantage and cannot asses if the agreement is properly executed and compliant with the provisions of the Consumer Credit Act 1974 and the subsequent regulations made under the Act. The Court of Appeal and the House of Lords have repeatedly visited the subject of credit agreements which do not comply with sections 60 and 61 and as a result are improperly executed as defined in S 65(1) and unenforceable by s127(3) of the Act. The case law is clear that the agreement must be produced before the court to be scrutinised before an order for enforcement can be made

 

Consequences of Non Disclosure of the agreement

 

14. 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 would need 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)

 

15. 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 amount credit 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

 

 

 

 

16. Further more 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

 

17. With regards to the Authority cited in point 17, 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

18. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

 

19. 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

 

"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.

 

 

The default notice

 

20. 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

 

 

21. It is neither admitted or 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

 

22. Notwithstanding point 21, 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)

 

23. 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

 

 

Deed of Assignment

 

 

24. The defendant requires sight of the deed of assignment of the debt from the original creditor whosoever that may be to Phoenix Recoveries (UK) Ltd S.A.R.L, for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt to Phoenix Recoveries (UK) Ltd S.A.R.L. as no notice of assignment has been received in accordance with the Law of Property Act 1925 S136 & 196(4)

 

Conclusion

 

25. 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.

 

26. In addition the defendant pleads to the court to consider the claimants unlawful splitting the cause of action into two or more claims contrary to S35 County Courts Act 1984. The defendant believes this is itself grounds to dismiss the claimants claim pursuant to CPR 3.4

 

27. If the court is not in agreement with the defendant on point 25 & 26,then 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

 

.

28. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the 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

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

 

 

 

 

that should do the trick

[Dispirited]

Paul, Just to clarify -

 

i) Nothing ever received from Phoenix. Do they really exist?

 

 

ii) Letter from Fredrickson dated 26 March '08 - which we ignored because the account was in dispute & because they'd never responded to our 'Account in Dispute' letter in Nov 07. Interesting that in their letter they mention a 'recent letter from BC' but nothing was ever received.

 

 

iii) Re: court proceedings - 1st Letter received from BC dated April - Arrgghh - I unwisely told my daughter to ignore it. I thought it was just another threatener. I was still of the opinion that the people to deal with were Buchanan.

 

 

I can put letter onto photobucket if you want to see them?

[Dispirited]

Many thanks for that, I'll have to sign off for a while we've got visitors. Will be back later.

[pt2537]

maybe we should send Mr Carters this little song YouTube - Twisted Sister - We're Not Gonna Take It (Cartoon) he may get the message:lol::lol:

[Dispirited]

All together now...

 

'oh We're Not Gonna Take It

no, We Ain't Gonna Take It

oh We're Not Gonna Take It Anymore

no Way!

 

oh.....................

oh.....................

 

we're Right/yeah

we're Free/yeah

we'll Fight/yeah

you'll See/yeah

 

we're Not Gonna Take It

no, We Ain't Gonna Take It

we're Not Gonna Take It Anymore

 

we're Not Gonna Take It, No!

no, We Ain't Gonna Take It

we're Not Gonna Take It Anymore...'

[pt2537]

Exactly The Message That Mr Carter Needs To Get Through His Head

 

 

maybe it should be the debt forums signature tune for all DCAs who try it on:D

[Dispirited]

Wow, Paul, the defence is perfect, thank you so much for your help, particularly on Father's Day!

 

Just to check, we send a copy of this defence to the courtalong with a copy of Fred's letter, but nothing else? It will go in the morning by Special D.

[pt2537]

Wow, Paul, the defence is perfect, thank you so much for your help, particularly on Father's Day!

 

Just to check, we send a copy of this defence to the courtalong with a copy of Fred's letter, but nothing else? It will go in the morning by Special D.

well, if you have a photocopy then i would send it,but if not just omit ithat bit, the thing is that the judges dont actually take a look at defences til it gets closer to the trial so its not important

 

and in anycase, i really do suspect that carters will discontinue and when they do please shout me and we will look at costs etc as these buffoons need punishing for all this messing around

[Dispirited]

I sure hope they do the sensible thing. I will definitely keep you posted, thanks again for all your help.

[Dispirited]

Brief update: Daughter got a letter from the court dated 17 June acknowledging receipt of her defence, stating that a copy would be served on BC. They then have 28 days to respond. To date we've heard nothing.

the 28 days are up today counting from the 19th June. What's the next step?

Should we be doing anything?

[babybear39]

You could call the court to see if they've had anything...