Help Please Re: CCJ From Northampton CCBC - ***DISCONTINUED***

[citizenB]

Thank you for your message aloysiush, I must admit that it has confused me somewhat, my DH is merely a lay person and I think it may well confuse him too! Are you a solicitor?

 

Thank you for your message pt2537, I fully agree with your comments! Is the defence (embarrassed defence) my DH was going to do still alright to do? It's a worrying time as it is and now feel left in a quandry.

 

Appreciate your help and advice

 

Mrs Z

 

Hiya Mrs Z.. It would appear that aloysiush has an agenda of his own. He has made 4 posts, all of which appear to be fairly controversial and without offering to clarify his statements he is just confusing the situation as pt says.

 

I would just continue down the route you were going. Once you have all your bits together, one of the team will give it the once over for you.

Edited July 15, 2008 by citizenB

[citizenB]

The particulars are a joke and a firm of solicitors has no business filing/serving the same. No account number, no date of agreement and no indication of the nature of agreement (whether fixed or revolving credit etc). Forget the silly letters. Make an immediate application pursuant to Part 3 CPR to strike out and in the alternative, clarification of the particulars, which are clearly an abuse of the process.

 

 

Mr & Mrs Z, is the statement I have highlighted above correct?? I am just having a nose around the forums to see if I can find someone with exactly the same circumstances as no doubt you are

[citizenB]

I am just posting a few thread links that you might find helpful.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

This is an embarrassed defence that 42 man has posted for someone to have a look at, I guess it would need a bit of alteration to suit your circumstances, but I believe it is the same company INCASSO that is involved. It might give you some idea of the case law that you will need to look at as well. It might actually be worth reading the whole thread, it isnt a particularly long one.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148723-urgent-help-required-2.html?highlight=Incasso#post1575409

Edited July 15, 2008 by citizenB

[Misterzeus]

ukaviator, thank you re: Piky

 

citizenB, what can I say? You have gove above and beyond with your help to me and Mr Z, thank you very, very much

 

Regarding the quote below by aloysiush, no, from what we can see on the poc section of the CCJ all it says is:

 

The claimants claim is in respect of monies due under an agreement between the claimant and the defendant, the agreement being regulated by the Consumer Crediit Act 1974.

 

and the claimant claims:

1. (the amount here)

 

 

 

Originally Posted by aloysiush

The particulars are a joke and a firm of solicitors has no business filing/serving the same. No account number, no date of agreement and no indication of the nature of agreement (whether fixed or revolving credit etc). Forget the silly letters. Make an immediate application pursuant to Part 3 CPR to strike out and in the alternative, clarification of the particulars, which are clearly an abuse of the process.

 

aloysiush may well have a point but it's no good he or she giving half a story! Just because a person isn't a well informed litigator, it doesn't make one stupid does it!!

 

Thank you also for the link to the thread, I will be having a read through this afternoon.

 

I will put the letter together (probably tomorrow) and then I will post it on here for someone to take a look at it and let me know if it's ok (or not).

 

Thank you so much once again, without the kind and much appreciated help on here, we would be royally stuffed!!

 

Mrs Z

[citizenB]

Hi Mrs Z, You are more than welcome. I sincerely hope that I have helped in some way. If only to offer moral support.

[Misterzeus]

Hi citizenB, yes we do think that you have been very helpful and great for keeping our morale up too! We are very grateful for that, so thank you once again!!

 

 

 

Below I have posted a copy of the "embarrassed defence" kindly provided by 42 man, with some adjustments. I have a few queries which I have highlighted in certain paragraphs (in blue with my comments in red), also the text in purple is extra info that Mr Z needs to add.

 

If someone can kindly have a look and offer an opinion or advice, both I and Mr Z will be eternally grateful, thank you.

 

 

 

 

 

In the Northampton County Court

Claim number

 

 

 

 

 

Between

 

 

The Co-operative Bank PLC- Claimant

 

and

 

 

MR Z- Defendant

 

 

 

Defence

 

1. I Mr Z of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by The Co-operative Bank PLC

 

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

 

3. 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 contract 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. MR Z received a default letter and a letter before action, the latter letter was acknowledged by him!

 

b) A copy of the purported contract 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) No account number is contained within the particulars to enable me to identify the account on which this claim is brought

 

d) 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.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

6. On xx/xx/2008 the claimant supplied a copy of an application form, annexed to this defence marked exhibit CP2, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. Accordingly I wrote to the claimant setting out the issues No CCA applied for , guess these two paragraphs should be disregarded?

 

7. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received. As stated before, received and acknowledged

The Request for Disclosure

 

8. Further to the case, on 26/06/2008 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 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 a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. All I have received is a letter from Incasso LLP stating it is unlikely that the details will be accessible within the time requested (a copy of this letter is attached to this Defence marked IR). 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 (a copy of the request is attached to this Defence marked CP).

 

The defendant also respectfully asks the permission of the court to amend this defence if or when the above documents are provided by the claimant.

The Importance of a copy of the Credit Agreement and its production before the court

 

 

10. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

 

11. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behaviour in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

12. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the consequences of such failings mean that the agreement is rendered unenforceable by section 127(3) of the Consumer Credit Act 1974

 

13. 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

 

14. 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)

 

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 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

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreements

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore 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) is to be found in Schedule 1."

 

19. 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

 

20. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with:

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

22. 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

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act. I refer to the judgment of Lord Nicholls of Birkenhead below....

 

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.

 

24. 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.

 

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

 

26. 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/f...974-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.

 

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

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

 

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. 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

 

32. Notwithstanding point 31, 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)

 

33. 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

 

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4 Do you think this is what aloysiush was referring to?

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

 

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

35. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

36. 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 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

37. In addition, should it be 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 is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case. Mr Z is unsure of the date, could be anywhere from 1999 – 2001! He used to keep everything, decided around a year ago to get rid of excess paperwork – eek!

 

Statement of Truth

 

 

I Mr Z, believe the above statement to be true and factual

 

 

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

 

Date

 

 

 

 

 

[citizenB]

Hi Mrs Z, I have to pop out for an hour and have a good read of your defence and also add links to some of the case law that you will need.

 

Yes, that is what aloyiush was referring to. Steven 4064 had put a link to it elsewhere so I saved the link for you. The comments below the link are also stevens for another CAGer.. I appear to have lost the thread link to which they apply. However, when I find it, I will add

 

http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm

"As the others have said, if they have not produced a copy of the agreement they have no case. Paragraph 7.3 of Practice Direction 16 of the Civil Procedure rules says that they must attach a copy of the agreement to the claim and produce the original in court.

 

You could actually apply for their statement of case to be struck out under CPR Part 3.4(2)(a) on the basis that "that the statement of case discloses no reasonable grounds for bringing or defending the claim" as they have not produced a copy of the agreement as required by practice direction 16.

 

You could then say, "in the alternative that the court is not minded to strike out the claimant's statement of case..." and ask for a stay"

[creditcardmug]

CB, if they issue in northampton they don't have to attach the agreement to the claim, thats one of the reasons they use it, not that it makes much difference IMHO

[citizenB]

CB, if they issue in northampton they don't have to attach the agreement to the claim, thats one of the reasons they use it, not that it makes much difference IMHO

 

Yes, I have noticed that mentioned on other threads.. but you would have thought they would have had to provide it fairly soon afterwards to enable a person to defend themselves properly.

[citizenB]

 

Just brought this over from the first page so as not to keep scrolling back

 

http://i305.photobucket.com/albums/nn216/Misterzeus/coop01default.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coop01ltr.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj1.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj2.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj3.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj4.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj5.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj6.jpg

http://i305.photobucket.com/albums/nn216/Misterzeus/coopccj7.jpg

 

 

Questions:

 

 

The dates on the default notice are Dated - 6th February and to remedy by 20th February, Yes??

 

As they havent made it clear on the POC which account they are claiming for..

 

The account number on the letter (2nd image) it was the number for the credit card and not the loan ?

 

The amount claimed for on the POC is definitely the amount for the credit card and not the loan ?

 

Also, have you got a link to a copy of what they sent you in response to your CCA please:)

Edited July 16, 2008 by citizenB

[pompeyfaith]

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;

 

 

Just something i noticed while reading with interest should the above marked in red be 18 just a thought dont want you to look stupid.

 

Regards

 

Pompeyfaith

[citizenB]

Removed redundant and irrelevant post to avoid confusion.

Edited July 17, 2008 by citizenB

[citizenB]

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;

 

 

Just something i noticed while reading with interest should the above marked in red be 18 just a thought dont want you to look stupid.

 

Regards

 

Pompeyfaith

 

 

I have checked this out with defences written by pt2537 and 16 appears to be correct.

Edited July 16, 2008 by citizenB

[citizenB]

lost the plot:D

Edited July 16, 2008 by citizenB

[Misterzeus]

Hi citizenB thanks for replying and taking the trouble to bring the scanned documents further up the thread along with all of your other help, it was very kind of you

 

I did try to post last night but our internet connection was playing up and we kept losing connection (BT better get their act together or they’re binned, lol).

 

In reply to your questions:

 

 

The dates on the default notice are Dated - 6th February and to remedy by 20th February, Yes?? Yes, no time allowed for delivery time

As they havent made it clear on the POC which account they are claiming for..

 

The account number on the letter (2nd image) it was the number for the credit card and not the loan ? Credit Card

 

The amount claimed for on the POC is definitely the amount for the credit card and not the loan ? Definitely the Credit Card

 

Also, have you got a link to a copy of what they sent you in response to your CCA please No CCA applied for, but ... did you mean the reply to Mr Z's CPR request from Incasso? Link below for that letter, luckily Mr Z sorted all that out, I have yet to learn how to do all that, I have just had to copy and paste the link!

 

http://i305.photobucket.com/albums/nn216/Misterzeus/incasso2.jpg

 

30. 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 (I THINK YOU NEED TO CONFIRM WHETHER THIS BIT SHOULD BE AMENDED - YOU DID RECEIVE ONE BUT IT DOESNT APPEAR TO BE CORRECT)

 

As far as we can see, there are no charges added to the default notice and it seems to have all the expected information as required by law. The reason I left it in is because of the first sentence, I forgot to ask about it in my last post!

We are still concerned about the “applying for the CCA part” as obviously Mr Z didn’t send off a CCA request. Having said that, wouldn’t that come under the CPR part 18 request? So, should I leave it in or disregard that completely?

 

I will try to find a place to insert the “website of Francis Bennion” paragraph, obviously, as you have pointed out, all paragraphs will have to be re-numbered!

 

Anyway, sorry to be such a pain, I am obviously thicker than I realised after all!! I will go away and spend some time on the letter now.

 

Thank you so much for your help

 

pompeyfaith, thanks for your concern regarding CPR part 16, very much appreciated

[citizenB]

My other questions were really just to see if the plonkers were claiming for the loan and not the credit card especially as they havent put any account numbers on. It could have been a bit awkward if the loan and credit card amounts were the same though

Edited July 17, 2008 by citizenB

[aloysiush]

Sorry for not responding earlier, but I have been away on business.

 

A defence should be deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. The case of Dimond v lovell is not on all fours with this case. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleadindg in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectivley or at all. The defendant is embarassed.

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

I hope this helps and is understood. I did not want to appear 'complicated' and apologise.

 

I have been reprimanded by persons for not explaining the 'full story' behind my suggestions. Some of those persons are suggesting you rely upon precedents to help in your case. I doubt you have read those precedents or the persons suggesting the same have done so. If they have they have not understood the same (now thats complicated). There is very little effective meaningful precedent in theses matters and you need to rely upon the CCA 1974. There is plenty of decent advice on this site, the difficulty is sorting the wood for the trees.

Edited July 17, 2008 by aloysiush

[pt2537]

Sorry for not responding earlier, but I have been away on business.

 

A defence should be deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. The case of Dimond v lovell is not on all fours with this case. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleadindg in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectivley or at all. The defendant is embarassed.

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

I hope this helps and is understood. I did not want to appear 'complicated' and apologise.

 

I have been reprimanded by persons for not explaining the 'full story' behind my suggestions. Some of those persons are suggesting you rely upon precedents to help in your case. I doubt you have read those precedents or the persons suggesting the same have done so. If they have they have not understood the same (now thats complicated). There is very little effective meaningful precedent in theses matters and you need to rely upon the CCA 1974. There is plenty of decent advice on this site, the difficulty is sorting the wood for the trees.

Aloysiush, thank you for clarifying your position,

 

i doubt that you will have been reprimanded, more asked to clarify matters.

 

it is obvious from your posts that you have a good grasp and knowledge of the legal system and if you dont mind me asking, would you clarify your position please? are you a solicitor, barrister Legal Exec etc or just a legal minded person. im just interested thats all

 

Regards

 

Paul

[AndyOrch]

Sorry for not responding earlier, but I have been away on business.

 

A defence should be deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. The case of Dimond v lovell is not on all fours with this case. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleadindg in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectivley or at all. The defendant is embarassed.

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

I hope this helps and is understood. I did not want to appear 'complicated' and apologise.

 

I have been reprimanded by persons for not explaining the 'full story' behind my suggestions. Some of those persons are suggesting you rely upon precedents to help in your case. I doubt you have read those precedents or the persons suggesting the same have done so. If they have they have not understood the same (now thats complicated). There is very little effective meaningful precedent in theses matters and you need to rely upon the CCA 1974. There is plenty of decent advice on this site, the difficulty is sorting the wood for the trees.

 

 

 

 

I would fully endorse the above

 

Regards

Andy;)

[Misterzeus]

citizenB

 

Yes, Incasso had until the 15th July to answer the CPR request and as it is the 17th now, they are out of time according to the guidelines.

 

The default notice (I think) complies excepting allowing for delivery!

 

No, the loan is only just over a thousand so there’s no way they could have got those mixed up!

 

Thanks yet again for all your help, you’ve been amazing support to us!

 

 

aloysiush

 

Firstly, I apologise for misjudging you and thank you for your help. I take on board what you are saying and will see if I am competent enough to put it together with the relevant details that need to be added.

 

Like pt, I too would like to know if you are a member of the legal profession!

 

Thank you once again

 

 

 

If anyone can help me put this defence together, I and Mr Z would be most grateful, Mr Z wants to get it done ready to post special delivery on Monday the 21st January. He is a bit of a panicker, but he can't help it, his PTSD makes him that way

[Misterzeus]

Apologies, I meant Mr Z wants to post SD on the 21st July not January, what am I like!!!

[citizenB]

Removed redundant and irrelevant post.

Edited July 17, 2008 by citizenB

[aloysiush]

Citizen B,

 

It should be the Co-op not its solicitors. The defence I prepared (2 paragraphs) is all that is required. The first rule of pleading is to never use a sentence when one word will suffice.

 

Default notices, Sec.78 requests etc are irrelevant, Dont show your cards at such an early stage. They will merely ensure that the amended POC answers all your points. Do not help them. Keep it simple. A long pleading does not make up for lack of content.

 

I deal with this on a daily basis. For instance, you are asking for something in 10. which shows a lack of understanding of the CPR. Do not reveal weakness. Draft long and then compact as much as possible. Never refer to the solicitors failures. The failures are always those of the client (in this case the Co-op).

 

Like a few others here, you have it, but need polishing. Keep it tight and you will frighten them!!

[letitbeme]

Excellent advice aloysiush. Clarification of litigation procedures is most welcome.

Regards LIBM

[citizenB]

So, this for the defence

 

 

 

IN THE XXXXXXXX COUNTY COURT

 

 

CLAIM NUMBER XXXXXXXX

 

 

 

BETWEEN:

 

 

 

Co-operative Bank plc

 

Claimant

 

And

 

 

Mr Zeus

Defendant

 

 

 

 

DEFENCE

 

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleadindg in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarassed.

 

 

 

 

and this for the solicitors... along with a copy of the defence..

 

 

 

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

 

Please serve amended particulars of claim and plead your client's case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

 

 

 

I can see this is going to be a lot easier for Mr Z. Presumably this could be filed online ? Just sending a copy of the defence and the letter to the solicitors via Special delivery ?

Edited July 17, 2008 by citizenB
spelling :)