Too Late?

[sirpip]

Hi Andy,

 

'Better than usual' eh? ....depends from which viewpoint though doesn't it?

 

In terms of proceeding to defence.... erm... :idea::idea::idea:

[AndyOrch]

Hi Sirpip

 

If you are struggling to draft a defence I recently did one for a personal loan in this thread you could adapt it to suit your circumstances and then post up and will have a look and tweak if ness. Urgent help required

 

 

Regards

Andy;)

[citizenB]

It might be a good idea to tot up the charges/late payment fees they might have added to see what they come to. If lots, you could counter claim.

[sirpip]

Hi Everyone,

 

For a heart-stopping couple of moments, I thought I'd missed my deadline to file my defence! But just telephoned the court and I have until 4pm on Wednesday... still doesn't leave much time though :-|

 

I've read through the defence drafted by Andy O (link a couple of posts earlier) - Many thanks for that, Andy - And this will be my starting template

 

However, the problem, once I delete that which doesn't apply to my circumstances, is that I'm not left with a great deal to say in my defence... before I try and make something of it all, can anyone (Andy probably ) advise on the following....

 

1. The defendant does not know the case which has to be met? The POC (as posted earlier in this thread) is, to my inexperienced eye, fairly detailed. Therefore, can I realistically argue this?

 

2. Can I argue that the claim is 'vexatious and amounts to unlawful harassment'? What is the basis for this? To be (through gritted teeth) fair, the claimant, unlike other creditors, hasn't telephoned at all. They accepted reduced payments for a few months, which I didn't make every month due to pressure being exerted by other creditors.

 

3. The Claimants have failed to produce a credit agreement to substantiate their claim ... I'm happy to stand by this, as they haven't supplied a copy of the CA (or default notice). This request was made post-claim under CPR18, I hadn't previously made a request. - They have made a partial reply to CPR, copy statements, copy of privacy policy, transcript of telephone call.

 

4. The claimant has failed to serve Default notice. They may, or may not have sent one; I may, or may not have received one. I'm happy to put them to proof on this point.

 

5. Regarding interest. Loan was for £8,800 + Interest of £2100 - Total amount payable £10,900 / 84 months. Total payments made of £2500, amount claimed = £8,400. Statements show no penalty charges just an additional interest charge of £1.50. The £1.50 isn't of any consequence, but does frontloading all of the interest onto the account constitute any breach of legislation? I only ask because they claim the entire £2100, surely this would be the interest due if the loan ran its full 7 year course?

[AndyOrch]

Regarding the P.O.C, it does not mean you have to admit the debt by challenging them.Defences are drafted to refute the Claimants P.O.C nothing more nothing less not to argue or present your autobiography simply to refute and halt/question their claim. I will try to illustrate by advising what I write when drafting defences. First, I always write(or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has!

Can I recommend not admitting any liability for the debt, partial or otherwise. If the credit agreement has not been provided by Sainsburys as the result of a CPR 18/CCA request , then you have no way of ascertaining if the contract is legally valid under the CCA 1974. In the absence of this information, you are unwisely, in my opinion, admitting liability for a debt, that hasn't been proven to exist or one that conforms to the requirements of the CCA 1974.

 

You might be thinking that of course a debt exists! However, for the purposes of the law, the existence of the debt is determined by a credit agreement being furnished by your creditors and one that is deemed to be properly executed, which means its layout and content conforms to what the CCA 1974 prescribes.

With regards to the full interest being applied well it is not unsual for the claimant to include the full amount up front depends on the terms of the agreement some do some dont and apply it monthly

They have applied the full amount from the drawdown after breach to the default. Any rebate would have been reflected in your Formal Demand. Giving you the option of early settlement or rectify the breach. Companies feel they have the right to include the full term of interest encompassed by the agreement when litigation is commenced Whether it is questionable/arguable You must refer to the terms and conditions of your agreement,unfortunatly you dont have.If you have any further concerns or dont understand why we draft defences in this matter please post and also post up your intended defence before submission to enable Cag to verify its content.

Itrust the above clarifies your concerns

 

 

Regards

 

Andy;)

[sirpip]

Thanks again Andy

 

Can anyone address point 2.? Re. the claim being 'vexatious and amounting to unlawful harassment'?

 

Don't mean to sound too tentative, but if I make this claim, not sure I can back it up

[AndyOrch]

Thanks again Andy

 

Can anyone address point 2.? Re. the claim being 'vexatious and amounting to unlawful harassment'?

 

Don't mean to sound too tentative, but if I make this claim, not sure I can back it up

 

 

Hi Sirpip

 

The term comes from any attempt by the applicant to be totally unamicable/Unreasonable in bringing the claim.If it dosent apply to your case then simply edit to suit.It is however a powerful word to use in any Defence that the claimant was Vexatious in bringing their claim.

Vexatious litigation is legal action which is brought, regardless of its merits, solely to annoy or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may bring down sanctions on the offender.

A single action, even a frivolous one, is not enough to raise a litigant to the level of being declared vexatious.

Repeated and severe instances by a single lawyer or firm can result in eventual disbarment.

Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in the abuse, vexatious litigants are often unable to retain legal counsel, and therefore represent themselves in court. Those on the list are usually either forbidden from any further legal action or required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions

 

Regards

 

Andy

Edited August 11, 2008 by Andyorch

[sirpip]

Bon Soir

 

In a shameless display of plagiarism, I offer this as a draft defence, it's a bit thin but it's all I've got. I respectfully request your urgent comments... As The So Solid Crew once (nearly) said.. I got 21 hours to go....

 

 

 

DEFENCE

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all.

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same.

 

Regarding that which is denied, on the 17th July 2008, The Defendant 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, any default or termination notices and any other documents which the Claimant seeks to rely on.

 

The request was sent by recorded delivery to the Claimant, it was received on the 22nd July 2008. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.The Claimants have failed to produce a credit agreement to substantiate their claim that monies are owed under a regulated credit agreement. Therefore I do not acknowledge that any debt is owed to the Claimant. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, Claimants are in default of said request under section 77(6)(a) of The Consumer Credit Act 1974.

 

To date the claimant has failed to comply with my request under the Civil Procedure Rules and I have not received the documentation requested. As a result, it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

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

 

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.

 

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 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).

 

Regarding that which is denied, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4

(2) (of what ?!?) 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.

 

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 cannot 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.

 

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 on the 12th December 2005, the Consumer Credit Act 1974 is the relevant act in this case.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is without merit and should be struck out for the aforementioned reasons.

[AndyOrch]

Hio Sirpip

 

Yes thats fine as i have stated does not have to be long and complicated just refute the claimants POC. Are you submitting this on line vis a vis MCOL?

 

 

 

Regards

 

Andy;)

[sirpip]

Hi Andy,

 

Yeah, MCOL'ing it tomorrow - well before the 4pm deadline though

[AndyOrch]

Ok Sirpip

 

Thats fine defence looks good couldnt have done better myself:D

just copy and paste into MCOL and dont forget to print your time reciept off.

 

 

Just post if you require anything further

 

 

Regards

 

Andy;)

[sirpip]

Anyone there? I guess Andy's there... he's always there

 

Please see excerpt from my defence:

 

Regarding that which is denied, I respectfully request that the Court give consideration to striking out the Claimant’s case pursuant to part 3.4 (2) (of what ?!?) The court may strike out a statement of case if it appears to the court – a) b) c) etc

 

Thanks

[AndyOrch]

Anyone there? I guess Andy's there... he's always there

 

Please see excerpt from my defence:

 

Regarding that which is denied, I respectfully request that the Court give consideration to striking out the Claimant’s case pursuant to part 3.4 (2) (of what ?!?) CPR The court may strike out a statement of case if it appears to the court – a) b) c) etc

 

Thanks

 

 

Regards

 

Andy:wink:

[sirpip]

You sir, are a star.

[citizenB]

He most certainly is:D

[sirpip]

Evening All

 

Well, defence was MCOL'ed on deadline day. Two days later I received a letter from the court acknowledging receipt of defence, they said it would be forwarded to the claimant and that the claimant would then have 28 days to respond (all standard stuff I should imagine) failing which the court may order the claim stayed.

 

That was 47 days ago.

 

I've heard nothing since from the court or from the claimant (still no CCA).

 

What do I do now? Contact the court to find out whether it was transferred to my local court? Whether its been stayed? What happens

[AndyOrch]

Nothing unless you recieve an AQ

 

 

 

Regards

 

Andy

Edited September 30, 2008 by Andyorch

[sirpip]

Sorry mate, AQ?

[AndyOrch]

Allocation Questionaire this will only be forwarded if the Claimant wishes to proceed and will then transfer the case to your local CC.

 

 

Andy

[sirpip]

Evening All

 

Been expecting AQ for some time and letter duly arrived from Sainsburys today

 

Except it wasn't an AQ, but a copy of a discontinuance notice which Sainsburys had sent to the court (Northampton Bulk).

 

Any ideas what I should expect next? I guess the whole process will start over at my local court? Still not had a complete CCA response though....

[creditcardmug]

Evening All

 

Been expecting AQ for some time and letter duly arrived from Sainsburys today

 

Except it wasn't an AQ, but a copy of a discontinuance notice which Sainsburys had sent to the court (Northampton Bulk).

 

Any ideas what I should expect next? I guess the whole process will start over at my local court? Still not had a complete CCA response though....

 

Hey this means you have won, they have lost, you just need to phone the court on monday to confirm they have the notice of discontinuance, but i dont expect there will be any problems.... congratulations.

 

You just need to claim for your costs now im sure Andy will help you with that

[tinkerbell20]

Yes congratulations and you will now be entitled to your costs plus they will need the permission of the court before they could issue a claim again so smile!!!:D:D

[sirpip]

Oh!

 

In that case

 

I won't risk a in case they uncover a cca.

 

Haven't got a scooby doo about costs. Andy, if you could conjour something up.....

 

CAG can have half of it.

 

And that's a promise.

[AndyOrch]

Hi Sirpip

 

And very well done time to crack open that special botte then.Ok Costs try this:-

 

 

Dear Sirs

 

in respect of XXXXXXXX -v- XXXXXXXX

 

I note that you have discontinued this claim , therefore, pursuant to CPR 38.6(1) i respectfully ask that you consider payment of my costs which i feel are reasonable

 

 

1) Time spent researching the Consumer Credit Act 1974 and the Regulations - XX hours

 

1.1) time spent researching and reading case law- X hours

 

1.2) time spent drafting defence and amended defence and allocation questionnaire -X hours

 

total 25 hours at the litigant in person rate of £9.25 per hour

 

these time scales are a conservative approximation, i feel that i have spent much more time than this however i am trying to remain reasonable

 

Other costs,

 

Printing, stationary and postage £10

 

Letter writing between the myself and Sainsburys and yourselves 1.5 hours £13.80

 

Total=£255.05

 

I respectfully ask that this sum be paid within 21 days,

 

 

I trust the above will suffice

 

 

Regards

 

Andy

[fiveyearplan]

Wonderful news!