CL Finance Court Summons For Bank Account

[AndyOrch]

Also if this claim relates purely to an overdraft you need to drop reference to any Default Notices and substitute with a notice served under sections 76(1) and 98(1) of the CCA 1974 termination notice ie Overdrafts

 

Regards

Andy;)

[albertini]

Andy

 

thanks for your help. this is what i've got now, cna you advise if it looks coherent enough to submit:

 

 

 

• 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 pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).
  
• Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed as 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 method the claimant calculated any outstanding sums due, or any termination notices issued or any Notice of Assignment required to allow the claimant a legitimate right of action, or any other matters necessary to substantiate the claimant’s claim
  

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

 

4. Further to the case, on 01/07/2008 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 Bank Statements and/or 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 made 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.

 

• The claimant replied to my request for disclosure on XXXX and I submit their reply as evidence (WH01). This reply clearly shows that the claimant has failed to comply with my request for disclosure entirely and it is suggested that such failure highlights that there is no case for me to answer.
  

 

• Further I put the claimant to strict proof that any notice served under sections 76(1) and 98(1) of the CCA 1974 relating to termination notice were sent to me and / or were valid. I note that to be valid, a termination 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 under sections 76(1) and 98(1) of the CCA 1974 termination notice.
  
• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)
  

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

 

• In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.
  

• Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.
  

[AndyOrch]

Hi

 

You need to add this after "Further I put the claimant to strict proof that any notice served under sections 76(1) and 98(1) of the CCA 1974 relating to termination notice were sent to me and / or were valid. I note that to be valid, a termination 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. In respect of the figures claimed, it is averred that the sums claimed contain charges which are unfair within the meaning given in the Unfair Terms in Consumer Contract Regulations 1999 and it is further averred that the charges levied are punitive in nature and are penalty charges

 

Looks ok to me I would drop the numbers 3/4 and replace with bullet points.Albertini is this being input via MCOL. If so dont forget to print off your Time reciept as proof of submission.

 

 

Rgards

Andy;)

[albertini]

Andy

 

Thanks for all your help. I will be submitting via MCOL and will follow your advice in relation to the printing of the time submission.

 

I will update when i hear more back after submitting this defence.

[albertini]

Just

[albertini]

Just a further update. We have an old letter going back to last year which states they are not able to produce an agreement due to the age of the account.

 

They hide behind the fact that as this is a bank account they do not have to provide one.

 

This makes me wonder if they have no record of statements etc as well. If that is the case where would this leave things?

 

They claim my brother owes them money yet have no evidence to back this up. Would this be sufficient to get this case struck out?

[AndyOrch]

Just a further update. We have an old letter going back to last year which states they are not able to produce an agreement due to the age of the account.

 

They hide behind the fact that as this is a bank account they do not have to provide one.

 

This makes me wonder if they have no record of statements etc as well. If that is the case where would this leave things?

 

They claim my brother owes them money yet have no evidence to back this up. Would this be sufficient to get this case struck out?

 

 

Hi again

 

Overdrafts have part V exemptions from the Act. This does not mean that they are exempt from the Act. The credit agreement would be in the form of a letter from the bank stating the aount of credit, the APR, charges and cancellation rights. This type of agreement would not be signed by the debtor, that is why i told you to include the points on termination notices rather than Default Notices in your Defence.

 

With regards to your last point your defence should attain a stay on their claim and will remain that way subject to the out come of the OFT case.

 

 

Regards

Andy:cool:

[albertini]

Right, defence submitted online! That was easy!

 

I'll keep this thread updated when i get a reply form either the claimant or the courts.

 

Once again Andy thanks for all your help!

[AndyOrch]

Hi Albertini

 

No problem thats what we are here for.did you print your Time stamp reciept off as proof of submission?

 

 

Regards

Andy;)