From Monument to.......Cabot

[banker_rhymes_with]

Hello C!

 

...because they can only help to make me more thoroughly prepared

Absolutely.

 

I think for a Litigant in Person, you have no real option but to put in a long Defence, because the key is to know all of the issues, and have them with you on the day. However, the real key is knowing and understanding what you have written.

 

Once the Defence goes off, then the real fun starts.

 

Next task is to plan on your Skeleton Argument, and on your Disclosure by List, to make sure you start to build on the Defence.

 

In effect, the Defence is a long thing that probably includes the Kitchen Sink. The Skeleton is where you fine tune it, and the Disclosure by List is where you line up all background bumf that may be needed on the day.

 

Barristers and many Lawyers would say having a long Defence is not wise, but then they are doing this as their full time Job, so can rely on their greater experience on the day. A Litigant in Person has to rely more on the documentation and the experience of putting that all together.

 

It is swings and roundabouts, a short Defence is better, provided you don't leave something important out! A longer Defence, that has been carefully researched and well considered, has its merits too, particularly for a Litigant in Person. The main problem with a long Defence is some Judges get snotty mainly because they are impatient and/or are unwilling to cut a Litigant in Person any slack anyway.

 

The key, once the Defence hits the ground, is that it hits the ground running. Don't sit back after this and assume the written Defence will do, because it may not do anything at all if you end up with a Judge who can't be bothered to read it or, worse, refuses to read it.

 

That's where the next stages from here count. Think of the Defence as your main resource, but now you must add to that, and support that, with every last reference that may be needed.

 

Then, stand back, and work on the Skeleton, and on the sharp tip of your key Defence points. They are the ones you will need to stick into the opposition on the day. A tight Skeleton will also get over the annoying Judge who can't be bothered to read things issue!

 

As you thrust the key points home on the day, you need to have available on the day, and at your finger tips, any and all background detail that supports your sharp Defence points. Start to practice how you will deliver them verbally, and consider how the opposition, or a hostile Judge, may try to throw you off balance and/or may make you jump around the issues to try and water down your points, or distract you up a blind alley.

 

If they question something, plan how fast you can go to the background bumf to amplify your point. IOW, your Court Bundle needs to be a mine of readily accessible information but, if you present the key points well, it may not be needed.

 

The worst is having a winning issue, then see that fall away because you could not support it with Case History references or Statute. You need to know your Court Bundle like you do the back of your hand, and that means planning it now, and not the night before Court.

 

The other issue is to examine the whole Claim, and start to look for weak points. If there is no sign of an actual Agreement, or you doubt the veracity of the copy, then get a CPR 31.14 request in straight away, to demand that you be allowed to go and see the original Document. Follow that up the moment the opposition mess around, and straight away, with an N244 Application to demand that the Court forces the Claimant to allow you to inspect. If they fail to allow that, then there's your first main issue to toot about on the day...put them on the back foot.

 

Thrust things at them, and do not let up. Try to defeat them before Court if you can, or at least make it harder for them by the time they do get to Court.

 

Be aware that many banks and DCAs will also try the same with you, a favourite trick being to submit an N244 Application of their own, to seek a Summary Judgment by having your Defence and/or Counter-Claim(s) struck out for having no merit.

 

That's a nasty little trick many play, and they hope they will get a pro-bank Judge who will allow them a sneaky victory via a short SJ hearing instead of via a full Trial. Be ready for that, and try to see that off before they get the chance via, say, CPR 31.14 and a N244 of your own.

 

Plan for the worst, and prepare in advance how to combat their tactics both ahead of Court, and when actually there.

 

I do hope this helps.

 

Cheers,

BRW

[Rhia]

I do agree. It's better we rip them apart here rather than a court to give us a drubbing because the points weren't thought through properly. It is very easy to get overwhelmed with all this information.

 

Get your defence in then chill out a bit..well at least for a few hours. As BRW says it's on with the skellie next.

[banker_rhymes_with]

Get your defence in then chill out a bit.

 

Yes, definitely.

 

But when suitably chilled, then come back to start on the next phase with your mind fresh and the decks cleared ready for action!

 

Cheers,

BRW

[cymruambyth]

Thank you very much for those words of wisdom. I will start gathering copies of the cases I have quoted and try to make sure I know and understand them. Doesn't google make life much easier these days!

One final question.....I had sent a 31.16 and received a short application form and t&cs, so I didn't send a 31.14, should I now send one?

Thank you for all your advice, I now feel ready to start planning for the next hurdle!

C

[banker_rhymes_with]

Hello C!

 

One final question.....I had sent a 31.16 and received a short application form and t&cs, so I didn't send a 31.14, should I now send one?

 

Yes, I would.

 

Make the point that had they been more cooperative with the CPR 31.16 before Court, you would not now be needing to send them a CPR 31.14 now that they have elected to push on to make a Claim.

 

Keep them to a tight timescale because, after all, if they felt confident enough to issue an N1, then that rather suggests they had already gathered together all of the documents needed to press home the Claim.

 

Make sure whatever you ask for via CPR 31.14 is mentioned in their Particulars of Claim (POC), because that, I believe, is all CPR 31.14 allows you the right to inspect.

 

Get this in fast before the case is allocated to Track, i.e. it should still be Trackless at this stage, so you are entitled to use CPR 31.14. Send it straight to their Solicitors via Special Delivery so you can get confirmation of delivery.

 

I'd give them 7 days from receipt to allow you to inspect. If they mess about even slightly, then off goes your N244 to bring the issue to a head.

 

Demand to see the Default Notice as well as the alleged Agreement, i.e. anything they list in their POC.

 

All being well, if they knew they were flying a kite with this, then they will get the message that you won't be taking any prisoners, and they may well elect to scamper away with their tail between their legs.

 

However, they may wait until you climb the steps of the Court, so press on regardless and never for one moment consider that you won't end up in Court.

 

Present everything well, and make it very clear that you will be taking this to Appeal if justice is not served the first time around. Hint at that all the way, and do not blink first.

 

Cheers,

BRW

[cymruambyth]

Thank you, will send it off this afternoon.

[cymruambyth]

Well Morgan's have replied to my defence...............and are going for a strike out as I have no prospects of defending the claim and there are no other compelling reasons why the case should be disposed of by trial!

Apparently 'it is clearly stated on the Application Form I have read and agree to be bound by the t&cs'

They don't have to supply a dn as this was issued by the oc.

Supplied lots of statements stating that I was paying money until xxxx08, plus card statements which prove that it is mine etc.

[cymruambyth]

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

Cabot Financial UK Ltd - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot Financial Ltd Is admitted

 

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

 

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

 

4. The claimant’s particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof.

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

Para 4 is denied, a representation of NOA is attached

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

Para 5 is denied, attached exhibits show claimant has a cause of action

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database)

 

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.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

6 to 8 no comment but concur CCA is relevant statute

 

The build up to this action

 

9. In the build up to this action, on the 29 July 2008 I wrote to Cabot Financial UK Ltd requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . Cabot Financial UK Ltd replied to my request on the 21 October 2008 supplying a Short Application Form without any prescribed terms. Admitted, copy of short applicn and t&c leaflet attached

 

10. I wrote to Cabot Financial UK Ltd setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents. Cabot Financial UK Ltd wrote back claiming the Application Form was a valid Consumer Credit Agreement under the 1974 Act.

Admit defendant wrote to claimant but denied that Agreement is not a valid CCA

The Request for Disclosure

 

11. Further to the case, on 10 July 2009 I requested the disclosure of information pursuant to the CPR 31.16 (letter attached marked Exhibit A), which is vital to this case from the claimant. Admitted

 

12. The claimant has replied by supplying a copy of the same Short Application Form as referred to in point 9. Admitted

 

13. 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 assess if the documentation which 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). 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.

Denied, relevant docs sent prior to disclosure....responded in accordance with Over Riding Objective. Denied documents do not comply with Statute listed

14. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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.

Denied stated in applicn form 'I have read and agree to be bound by the t&cs'

15. It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with 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

 

16. 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."

 

17. 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

15 to 17 denied Credit Agreement does not fall foul of CCARegs 1983

18. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

Denied agreement signed by both parties

19. The claimant is therefore put to strict proof that such a compliant document exists.

No comment as claim is that CCA exists and is compliant

20. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [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;"

 

The Need for a Default notice

21. Section 87(1) of the CCA 1974 says:

 

87.--(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....

 

Section 88 says that the Default Notice must be in the prescribed form and the associated regulations say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that 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 ... the claim

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

Denied, statements show had money and made payments

21. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

22. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

23. Further to point 22 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

24. The Default notice supplied by the Claimant is dated Thursday 10th April 2003, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 7 calendar days from Monday 14th April, namely Monday 21st April 2003, not the 7 calendar days from the date of the letter as stated in the Default Notice which would have been 17th April.

 

25. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 7 clear days to rectify the breach. I also 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).

 

26. The 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 an 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.

 

27. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

28. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 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.

 

29. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

30. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

31. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

32. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

33. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

21 to 33 cannot be admitted or denied. Claimant has no kiability, knowledge , responsibility of dn, as was served prior to assignment

34. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

35. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

34 to 35 neither admitted or denied, interest and termination prior to assignment

36. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.)

 

The claiming of interest

 

37.I note the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

The general rule:

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

Denied, the statute refers to interest after judgement

 

Conclusion

 

38. 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/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.

Denied

39. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

Denied

40. The claimant has failed to issue a valid Default Notice as required under s. 87 Consumer Credit Act 1974 thus making any termination of the agreement unlawful.

Denied

41. The claimant is laying claim to interest for which they have no valid legal claim.

denied

42. 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.

Denied

43. Alternatively, Should the court order the claimant to produce the necessary documentation. 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.

 

Denied as relevant docs supplied prior to defence

Also in house statements showing payments since assignment etc etc

Defence holds no merit .....struck out CPR 24.2 or CPR 3.4.2:-

no real prospects of defending

no compelling reason whycase should be disposed of at trial.

Statement of truth

Legal Exec.

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

 

Any comments, guidance, suggestions will be gratefully received.

Nothing from court.

[BeauBrummie]

Hi Cymruambyth,

 

Had exactly the same reponse to my defence so I have sent them this

 

I thank you for your recent communication regarding your opinion of the merits of my case and defence.

I am quite willing for my defence as submitted to go before a court for a decision, should that be required, and at this point have no wish to enter into any argument or discussion regarding the merits or legalities of the document.

The facts of the case are quite clear from a legal stance, and there is case law and precedent to back up my defence.

I therefore totally refute your attempts to persuade me to withdraw my defence and my position remains unchanged from my defence submission.

 

They seem to have not been too impressed with my resistance to caving in----I have to send in my AQ by Friday.

 

Have you done any research on what Morgans are relying on? I have not had the time and have been relying heavily on other experience on here, but I think it is time to find out exactly what they are going to say to the Judge.

 

Beau

[cymruambyth]

Hi Beau

I have been reading your thread with interest!!!!

I keep checking 'legal successes' but haven't found much comfort. Since the Cabot Fan Club thread or sticky was removed information hasn't been as obvious. I too am relying on the excellent advice received. As Morgan's have recently (ish) set off on their own, I think it is pretty much a game of chicken.

Reading my defence again, I think I have quite a strong case, so I'm now going to start printing off the cases and statutes. Have you been following Brent v Cabot?

[Docman]

It looks like Cabot are going for a SJ in the hope of getting a duffer DJ. 20/80 rule and all that!

[cymruambyth]

Yes, I'd better start praying and printing information.

[BeauBrummie]

It looks like Cabot are going for a SJ in the hope of getting a duffer DJ. 20/80 rule and all that!

 

Docman----can you explain this rule

 

Thanks

 

Beau

[cymruambyth]

hi Beau, I assumed he meant something along the lines of 'For many companies, 20% of the customers generate 80% of the profits.' Or the luck of the draw re DJ:eek:

[BeauBrummie]

hi Beau, I assumed he meant something along the lines of 'For many companies, 20% of the customers generate 80% of the profits.' Or the luck of the draw re DJ:eek:

 

Oh flippin eck, me being a Bookkeeper as well should of known that!!!

 

Thanks

[cymruambyth]

Feel comforted having a Bookkeeper also working through this (usually pay attention to detail)

[supasnooper]

Hi CAB,

 

Looks like Morgans are good mates with Restons - who I am sure you've read of on the site.

Morgans seem to use the same modus operandi of saying the defence is poor and go for Summary Judgment.

I'm sure if you look in the Successes Forum you'll find plenty of Caggers who have given Restons a good poke in the eye when faced with a SJ hearing.

 

If they go for SJ as they suggest, a defective DN will see that off.

[cymruambyth]

Thank you for your comments. The DN is definately defective plus the short application form, I hope Iam ok. It is a matter of printing, understanding and holding my nerve. If I say it often enough I hope to believe it,

[BeauBrummie]

Thank you for your comments. The DN is definately defective plus the short application form, I hope Iam ok. It is a matter of printing, understanding and holding my nerve. If I say it often enough I hope to believe it,

 

This could be a case of if they (Morgans) can do it--- then so can we,

Draft Directions for my AQ need to be have something in there so that I reserve the right of Summary Judgement should Morgans (and I know they wont) not comply with what they have coming to them soon.

 

Beau

[cymruambyth]

Hi, clause 42 of my defence made that suggestion (respectfully) to the DJ.

[supasnooper]

Thank you for your comments. The DN is definately defective plus the short application form, I hope Iam ok. It is a matter of printing, understanding and holding my nerve. If I say it often enough I hope to believe it,

 

I'm sure you've learned lots here and won't be put off by Morgans scare tactics.

 

Have a read of this thread (post # 876) to see what stunts his opposition sols tried to pull near the hearing date - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court-44.html

 

and then read the result

[cymruambyth]

Thank you, will read, digest, save and maybe even print.

[cymruambyth]

Great n150

[cymruambyth]

Trying to complete my N150. I have based it totally on the one used by BeauBrummie.

A 1) Do I say no to settlement

2) no

3)no?

4) Despite requests under cpr 31.14 & 16, they have failed to supply documentation

B no

C Yes

D Applications, could I go for SJ as application form and faulty DN

Witness me, no experts

Which is best track, Cabots interest puts it over 5k

E Hearing 1 hr

F Directions, yes; not agreed with others

G Do I enter anything

H N/A

I Yes

Section F Draft Directions with a little addition ref Deed of Assignment

In the xxx County Court

Claim Number xxxxxxxx

 

Between

Cabot Financial (UK) Ltd - Claimant

and

 

- Defendant

 

 

 

 

 

Draft Order for Directions

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.
  
• Document, contract or deed of assignment for the account. This to be compliant with s136 of The Law of Property Act 1925.
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

And then to Section I other Information

In xxxxxxxxCounty Court

Claim Number xxxxxx

Between

Cabot Financial (UK) Ltd - Claimant

and

- Defendant

 

N150 Allocation Questionnaire

 

 

 

Section I - other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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 and63, section 127(4) precludes the court from making an enforcement order.

 

 

I wish to reserve the right to submit an amended defence should the documents be forthcoming from the claimant, and respectfully submit that there is no case to answer if the submissions are not forthcoming.

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

Edited September 26, 2009 by cymruambyth
pressed button too quickly!

[Rhia]

Have a read of this too!

http://www.consumeractiongroup.co.uk/forum/general/204926-just-back-court.htm