Shoosmiths and Nat West

[underdog13]

My sympathies AT99, this must be so frustrating. Best of luck, subbing:)

[AT99]

Hi Bazaar

 

I thought about going into all of that but this letter is just about getting the stay overturned. Its clearly not right and an abuse of the system; NW didn't even have the courtesy to send me a copy of the letter sent to the judge requesting it. I thought that it was protocol from the point things went to a court.

 

I have been continually told by Shoos that I have lost and that NW will do this and that to me. They told me in June they would put a charge on my house unless I paid. Perhaps they might like to get me the required information first; cart and horse spring to mind.

 

I expect the judge to ignore my letter but if he does it will leave an interesting situation as either NW will fail to provide any documents, that then leaves me with some interesting follow ups such as the over priced mortgage I now have to have due to their default, the stress this case has caused to my personal life and the total disregard of handling my personal data. Or they produce the documents and I assume I have the same right to kick my heels. What happens if I get refused a stay or three?

 

AT

Edited November 12, 2008 by AT99
Punctuation!

[vexlitigant]

Hi AT

 

Did you send the letter off, and although i know its early, have you had a response?

 

Any more data from Shoos / NW in respect of the Part 16 request?

 

Cheers, Vex

[AT99]

Hi Vex

 

I must admint I haven't sent the letter to the court, I will probably leave it as I have a lot on at the moment workwise to it might even prove helpful having the stay.

 

Nothing on the part 16 request. I am not expecting anything from them until the very last minute now; if at all. So I am just going to wait until 12th December to pass and see what NW actually come up with.

[vexlitigant]

Hi AT

 

I trust you are keeping well

 

Using your initiative as a prompt, i typed up a similar letter to yours and lodged that with the court last week.

 

By coincidence, a large pile of docs arrived here this morning. One cover letter and a ton of statements. I'll put the details on my thread later

 

Thanks, Vex

[AT99]

Time for an update.

 

I have just called the court for an update as the Stay expired around two weeks ago and NW have requested a further stay. I now have to wait and see if the judge grants this one.

 

Should I write in requesting the case be struck out?

 

Vex, did you get any joy with your letter?

[Docman]

AT

 

The judge is likely to grant a furthre stay UNLESS you object. If there is no opposing view, then he has little option. However, if you send the letter you had in post #73 (suitably updated), the judge could then refuse to extend the stay andcontinue with the case.

 

As to striking out, you could at the same time make an application to strike out and request summary judgement against NW WITH COSTS but it would cost you the court fee of £75.

 

I would be tempted to send the letter first and see the reaction of the judge. He may issue Directions requiring NW to produce the docs. Did you submit a draft Directions Order with your AQ?

[AT99]

Thanks Docman

 

I've got the letter printed and signed this time, no more waiting around. I'll drop it in to the court tomorrow and see what happens. I'd imagine all will be quiet until new year.

 

I sent directions originally and have enclosed another copy along with the last correspondence from NW.

 

Merry Xmas.

 

Alex

[AT99]

The Judge has refused a further stay and asked the Claimant to report to the court "forthwith".

 

I wonder what NW will provide now, perhaps they may even file an AQ.

[vexlitigant]

Hi AT

 

Apologies for radio silence. I've been absorbed with the kids new Nintendo Wii

 

No joy with respect to the letter to the judge.

 

Looks like you have somne joy though:)

 

Vex

[AT99]

Shoos sent two letter today.

 

The first was a single page letter saying that they will not provide the loan agreement as I had not sent a section 77 request and if I require a copy then I should send one with a £1 payment. This seems a strange stalling tactic as providing this would go a long way to resolving this case in their favour.

 

The second is an N244 application notice requsting summary judgement and that my defence is struck out along with the 3rd set of statements. These people have no regard for trees!

 

Anyway, their reasons for asking for judgement are;

 

1) I have provided no reasonable grounds to successfully defend the case.

2) There is no compelling reason for the case to proceed to trial.

3) The claimant seeks its costs.

 

They have asked for a hearing to deal with this.

 

They have then provided a witness statement which goes through what they claim I owe with dates etc. It also says they sent default notices and formal demands but they only include screen prints confirming this; still no sign of these documents.

 

Lastly they say my defence is purely relying on technical aspects of the loan agreement and formalities of the consumer credit act. They go on to say I have never denied taking out the loan.

 

I am not sure if I need to respond to this or wait for the judge to respond with what I assume will be a hearing date for the application.

 

I like the way that Shoos believe they can totally ignore the consumer credit act and ignore the finer points of legislation put in place to protect consumers because they are "formalities".

 

Any advice would be gratefully received.

 

Alex

[Loser4u]

Shoos sent two letter today.

 

The first was a single page letter saying that they will not provide the loan agreement as I had not sent a section 77 request and if I require a copy then I should send one with a £1 payment. This seems a strange stalling tactic as providing this would go a long way to resolving this case in their favour.

 

They sent me mine under a CPR18 request but this is because they believe it is enforcable. I would say they are trying to avoid the agreement issue because they don't have it or it is totally unenforcable. No agreement means they have no case and they know it.

[AT99]

Thanks Loser4U, I am getting this impression from them but does anyone know if their refusal to supply CCA under CPR18 is valid? I thought a CPR18 required them to supply such documents. Its a court issue rather than a credit act one.

 

If this is a mischevious request, perhaps I should respond and copy the court in. It might stop them messing about if they know every letter they send is going to be copied back to the court.

[vexlitigant]

Shoos sent two letter today.

 

The first was a single page letter saying that they will not provide the loan agreement as I had not sent a section 77 request

 

Remember...

Section 77 applies to regulated fixed sum loans (e.g. bank loans),

Section 78 applies to regulated running account credit (e.g. credit cards), and

Section 79 applies to regulated consumer hire agreements (e.g. hire purchase agreements)

and if I require a copy then I should send one with a £1 payment. This seems a strange stalling tactic as providing this would go a long way to resolving this case in their favour.

 

In post #4 in this thread, Docman advised you to request a copy of the CCA and Default Notices.

In post #7 you said that you put a CPR request on them

In Post #11 where Docman provided you with a defence, there was a line in that saying that you had requested a tru copy of the CCA.

 

So, did you ever request a copy, and have you ever received a copy. Did you request it under section 77??

 

Whe you filed your original Allocation Questionnaire, didn't your draft order for directions seek to point out that they had not complied with this request, and thus were frustrating proceedings??

 

The second is an N244 application notice requsting summary judgement and that my defence is struck out along with the 3rd set of statements. These people have no regard for trees!

 

Anyway, their reasons for asking for judgement are;

 

1) I have provided no reasonable grounds to successfully defend the case.

2) There is no compelling reason for the case to proceed to trial.

3) The claimant seeks its costs.

 

They have asked for a hearing to deal with this.

 

They have then provided a witness statement which goes through what they claim I owe with dates etc. It also says they sent default notices and formal demands but they only include screen prints confirming this; still no sign of these documents.

 

Are screen shots proof that anything made its way to the printer, never mind being picked off the printer, shoved into an enveliope, and then onto the post box? I think NOT. I would question their process. I would also question the validity of this extremely flimsy and somewhat underhand attempt to dress this up.

 

Lastly they say my defence is purely relying on technical aspects of the loan agreement and formalities of the consumer credit act. They go on to say I have never denied taking out the loan. Bloody t***s!! I do not know anyone who denies taking these loans out. What we generally contest is whether an agreement has been properly executed, and whether it is enforceable. Having said that, it would appear that their precise point that "you are purely relying on technical aspects of the loan agreement" possibly indicates they fear that those 'technical aspects' WILL work against them. I CAN TELL YOU ONE THING FOR DEFINITE. THEY WILL MAKE DAM SURE THAT ANY TECHNICAL ASPECTS WORK FOR THEM, WHETHER IT IS THIS CASE OR ANOTHER THAT THEY ARE IN COURT WITH!

I am not sure if I need to respond to this or wait for the judge to respond with what I assume will be a hearing date for the application.

 

Are you going to wait for the judge to respond, or are you going to call the court?

 

I like the way that Shoos believe they can totally ignore the consumer credit act and ignore the finer points of legislation put in place to protect consumers because they are "formalities".

 

Any advice would be gratefully received.

 

Alex

 

Stay on top of this AT!!

I'm right with you!

[AT99]

Thanks Vex, good advice as ever.

 

I can see this moving quickly from here. I will give the court a call on Monday but they don't generally give much help; just tell you the status of a case (which was useful when Shoos were only writing to court and not me).

 

I specifically requested the agreement in both my CPR 18 request and in my defence. I'm still not 100% clear if I need to send in a section 77 request. I assume not as I would think NW need to provide it under my CPR 18 request to move the case forward.

 

I do feel that Shoos & NW are grasping at straws or trying to give me the run around but I am trying to ascertain what my next steps should be. I will phone court on Monday but should I;

- put in a Section 77 request to NW?

- Respond to the letter re CCA with details of previous requests and copy in court?

- Write to court arguing NWs N244 request due to lack of reply to CPR 18 or wait for court to respond to their request then deal with from there?

 

Is it possible to talk to the Judge? I have a feeling this might be my best route to a resolution.

 

Thanks

Alex

[vexlitigant]

Ok, Here is my defence so far. I think I have removed all the irrelevent bits and edited where needed.

 

Mr xxxxxxx xxxxxx

xxxxxxxxx

xxxxxxxxxx

xxx

xxxx xxx

3rd July 2008

In the xxxxxxxxxxx County Court

Claim number xxxxxxxx

 

Between

 

xxxxx Bank plc - Claimant

 

and

 

xxxxxxxx - Defendant

 

 

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

a) The claimant's statement of case fails to comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil procedure rules requires that a copy of the written contract be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon

 

The Request for disclosure

 

3. In an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 18/06/2008 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 referred to in the particulars of claim 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 the notice of assignment. Copies of the letter, proof of postage and proof of delivery attached marked Exhibit mysurname 1, 2 & 3.

 

4. To Date the claimant has failed to accede to 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.

 

5. 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).

 

6. 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

 

7. 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)

 

8. 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

9. The prescribed terms must be within 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

 

10. 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."

11. 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

 

12. 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.

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

 

***************************************************************

 

14. 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.

 

***************************************************************

15. 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).

 

16. 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.

 

17. 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)."

18. 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.

 

19. Therefore since the original documents are required under the regulations stated in this defence and further more since the Civil Procedure Rules clearly set out that Original documents must be made available for inspection in practice direction 32 Para 13.1 I request that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement

 

20. 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. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then 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

 

21. Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [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;

22. In addition, Section 87 of the Consumer Credit Act 1974 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

87. Need for default notice.

- (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.

And further more section 88 states

88. Contents and effect of default notice.

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

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

23. Therefore the above sections of the Consumer Credit Act 1974 clearly sets out that service is a requirement and the defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

 

24. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

Failure of the Claimant to supply a sufficient letter before action

 

25. The claimant has in the defendants opinion failed to conduct themselves in accordance with the Civil Procedure Rules insofar that they failed to issue a letter before action compliant with the CPR preaction protocols which state

4.3

The claimant's letter should -

(a)

give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

 

(b)

enclose copies of the essential documents which the claimant relies on;

 

©

ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

 

(d)

state whether court proceedings will be issued if the full response is not received within the stated period;

 

(e)

identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

 

(f)

state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

 

(g)

draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

 

26. 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

 

27. 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.

 

28. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

29. 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 I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

30. I respectfully ask the permission of the court to amend this defence if / when the claimant provides full disclosure of the requested documents and allows inspection of the original documents

 

31. 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.

 

 

Statement of Truth

 

 

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

 

 

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

 

Date XXXXXX

 

 

Copied your defence from the front of your thread. Please read the section highlighted in red. If this is your defence VERBATIM, then they would be right - You have NOT referred to section 77.

 

I would look into doing a CPR 31.14 request. Once this has been submitted (PDQ i would suggest too!!) you may have space to ammend your defence in light of what they do, or indeed do not produce!!

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

This gives them 7 days from receipt of you letter. If they respond in time, then you will be in a better position to understand what their position is. If they do not respond then at least you would have upped the ante in your favour (again) (i guess)

 

BUT DO NOT LET THEM SNEAK THIS. RING THE COURT AS WELL

 

Here is the link to Surfaceagentx20's link on the 31.14 idea.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Cheers, Vex

[Docman]

Lastly they say my defence is purely relying on technical aspects of the loan agreement and formalities of the consumer credit act. They go on to say I have never denied taking out the loan.

 

Shoos are desparate. These technicalities are called the Law Perhaps you should write to Shoos suggesting their staff attend the College of Law and sit some legal exams.

[vexlitigant]

Shoos are desparate. These technicalities are called the Law Perhaps you should write to Shoos suggesting their staff attend the College of Law and sit some legal exams.

 

 

Precisely

[underdog13]

Shame there isn't a 'Dumbies Guide to' they could gen up on;)

[vexlitigant]

Shame there isn't a 'Dumbies Guide to' they could gen up on;)

 

Quite. Few years ago when i was apprentice, this 'mentor' used to tell me (when referring to poor performers) "son - you can't polish it" Although i think there were a few more consonants in that statement . Think that rule applies to the para legals we seem to clear up after in this forum.

[vexlitigant]

Don't forget to ring the court today:p

[AT99]

Thanks for the reminder Vex. It was on my list to do today. As I have said previously, my local court don't seem to be overly helpful and so it proved again today.

 

They have told me I just have to wait to hear from them and there is normally a hearing (this is the request from Shoos in the 244 application). Can I send a response to the N244 to the court? Is there any point?

 

I will send the 31.14 request as I expect the deadline for this to have expired by the time any hearing is made.

 

I have just been re-reading the N244 application and Shoos write

"That the claimant be granted summary judgement for all or part of the claim pursuant to CPR Part 24 and/or all or part of the defence to be struck out beacuse;

1) The defendant disacloses no reasonable grounds for successfully defending this claim.

2) There is no other compelling reason as to why this case should proceed to trial.

3) The claimant seeks its costs.

 

Should the defendant wish to rely on evidence at the hearing, then he should file such evidence at court and serve a copy on the claimant at least seven days prior to the hearing pursuant to CPR part 24.5 (1)."

 

Surely this means Shoos must provide their evidence before the hearing too....this must include the CCA to stand any chance of success. Would it be wise to sit tight and wait for a hearing and the process that will force Shoos to fully disclose their hand or is there a strong chance this application will be refused and further drag on the process?

 

Alex

[bazaar]

Im pretty sure your 'reasonable grounds' for defence would be no CCA produced.

get the cpr 31 request in asap

[Docman]

AT

 

How do you feel about taking the initative by issuing your own N244 application for summary judgement just as Shoos have done? It would cost £75 in court fees unless you are on benefits.

It seems to me that Shoos are trying to get judgment by the back door, so to speak, by this application. They haven’t produced any docs but will realise that you have put in a defence from the Internet which covers all the bases. They must be hoping that you do not turn up at a hearing, or if you do, they can hoodwink you and the judge by picking holes in your defence. The judge should be impartial but they are under pressure and can sometimes take the easy route “ You did use the credit card, didn’t you, Mr AT, so you should pay up” kind of argument.

You might like to write to the court confirming that you will attend a hearing and you should certainly plan to do so. It would help if you could sketch out your skeleton argument ie summarising the defence, without going into the detail. All you have to show at this stage is that there is a reasonable defence.

[AT99]

Hi Docman

 

I would love to but cash flow just after xmas makes this a non-starter at the moment. They will have had their 31.14 request by now and I will be laying out my defence this weekend so its ready.

 

I've been thinking about Shoos application and I'm interested to see what the judge says. I am tempted to write a letter in response to their N244 so the judge has my view on it. The letter would go along the lines of

1) NW failed to supply any relevant (and required) documentation to date including agreements, required notices and AQ.

2) NW requested several stays but took no action to find resolution

3) NW seem to be doing everything in their power to keep from presenting their case or allowing me to present mine.

4) I haven't been able to put up a defence as I am still waiting for required info to allow me to do this.

4) The quickest way to resolve this is to get all documents to all parties, allow me to put in defence and then have full hearing.

5) In view of the above a hearing for this application is just wasting court time.

 

This would be pretty much my defence in a hearing but I can't help feeling Shoos shouldn't even get one.

 

Part of me wonders if NW have elves going through their filing cabinets in the faint hope of find something they are required to keep so are just buying time. That or they hare hoping for Mr Brown to offer to pay instead.