im new and need help please!

[jdmw21]

What should I do!?

 

Hi I’m new here and this is my first post! Thank you for a great site and its taken me long enough to be brave enough to post here…

 

I’m seriously in debt. I got into difficulties after uni and due to my relationship breakdown.

 

I owe approximately £30,000 to 10 different creditors – in unsecured loans, overdraft and cards. (Without including my student loan).

 

I am a lone parent with a teenage daughter and my take home pay is approx £1600 month.

 

I have a shared ownership property bought in 2007- market value was 157,500 and my mortgage is £63,000 interest only.

 

My income barely covers my outgoings and in January 2008 I just stopped paying my bills (stupid I know) and even stopped opening mail. I am telephoned constantly and now people are knocking on my door…

 

I am now being chased by debt collection agencies and have just received a County Court claim which I would like to defend due to the charges added on top but don’t know where to start…

 

I really am in a mess but now i'm ready to start dealing with this before it gets even worse….

 

Please advise!!

 

[saintly_1]

Hi and welcome to CAG

 

I have moved your thread to the General Debt Forum where it will get more advise

[42man]

OK....first try and relax, there are a lot of other people in similar situations to yourself and most can understand your situation, it's going to be a long road, but try and be strong, and keep a record of all your correspondence.

 

I would recommend calling the national debtline first as they are very good..and offer free advice...

 

 

With regards to the court claim can you tell us more ?...what you MUST do is acknowledge the claim within 14 days on the date of the claim, then you have a further 14 days to submit a defence....

 

I would send the opposing solicitors/debt company/bank (whoever's name is on the claim form) this by RECORDED DELIVERY (and do not hand sign it)....

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

What you also need to do is spend some time reading through these forums in the legal sections and legal successes....

 

It would also help if you could list the debts (do not be specific in amounts) and what each is for.....

[jdmw21]

thankyou for your help so far and a big thank you for this site! This is my situation with the court bit...

 

Court Issue date 7th july from CL finance Ltd claiming 654.80 plus costs now £779.80 on behalf GE money

 

yesterday i rang the court and they advised my defense had to be in this friday 8th July...! They advised me to acknowledge service online, sent me an application notice and said to send £40 postal order via Special delievery and request extension to give me more time to file my defense which i did yesterday.

 

I also sent a CCA request to GE money and the request for info under CPR by special delivery.

 

this is the particulars of claim:

 

'...claimants claim is for 654.80..monies due..under regulated credit agreement between...defendant and GE capital...and assigned to the claimant on 2nd july 08 notice of which has been given to the defendant.

 

the defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

Pursuant top clause 7 of the agreement the Claimant also claims contractual interest of 26.478% per annum from the date of these proceedings to the date of judgement, or sooner payment accruing at a daily rate of 0.57.'

 

 

Please help me with my defence!

 

In march 2007 i started reclaiming charges of £237 + interest but they have only offered £45 and i believe they have added more charges since my original claim....

 

Also i wrote to them in jan 2008 explaining i was in financial difficulty and requesting them to hold interest, reduce payments etc which they acknowldged. however they sent letter dated 25/2/08 demanding full payment!!

 

In my opinion the majority of this debt is through unfair charges/interest depite my request to reduce payments?

 

What should i do next??

[42man]

Bear with me, i'll try and find a defence that might help you....

[42man]

ok....you need to read this very carefully and try your best to understand what is being said here, it gets the main points across, you need to edit the dates, check the number orders, send this with copies of the CPR and the CCA request, then send this to the court and the opposing solicitors by recorded delivery.

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

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.

 

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 have I written to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . (A copy of the correspondence is attached to this defence marked CP..with rec del slip)

 

 

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

 

The Request for Disclosure

 

8. Further to the case, on xx/xx/2008 I have 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.

 

Without any documentation it is difficult to compose any defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the CPR request is attached to this Defence marked XX with rec del slip)

 

 

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 behavior 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 may not be 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 could be 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 may fall foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms may not be 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. The agreement must at the time it is laid before the debtor contain all the terms of agreement

 

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 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 would request that the court uses its powers under section 142 Consumer Credit Act 1974 to dismiss this case.

 

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 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

 

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 would request the court give consideration in future to striking out the claimants case pursuant to part 3.4 on non production of a default notice.

(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. 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.

 

It must also be noted that this alleged debt may be made up entirely of excessive charges which is not uncommon, indeed it may even be pertinant to say that I may be owed more than I allegedly owe.

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

[42man]

Send the defence and CPR request to Howard Cohen.....

[jdmw21]

wow :grin: all i can say is THANKYOU! ive only briefly read it once so will read it again!! slowly!

 

it appears that going through my paperwork that i have never recieved a default notice form GE money...

 

Now do I wait for the response from my CPR and CCA request delivered yesterday or do I submit my defense now??

[42man]

You have 14 days from the date on the claim form to acknowledge the claim, then you have another 14 days to submit your defence...it's slightly early to submit the defence, but don't forget to acknowledge service and defend...(which is what I presume you want to do !!)

[42man]

Wait to see what Cohen's do...!! but WATCH the deadlines..!!! DONT MISS THEM

[jdmw21]

Thanks 42man. I have recieved application notice back from the Court today and not sure what it is!! (sorry im so new to this)

 

In Part A i need to put who is making application and what for?? would that be me or CL??

 

Part B. I wish to rely on..tick box..... im guessing my application for an extension to file my defense??

 

Advice on the above much appreciated

 

(i've heard nothing from CL/H cohen re my CPR request...they have 6 days left to respond...)

[The GodMother]

can u post them form nuber please so i can help u more.

 

Part A Your name

 

Regarding your CPR and CCA dont hold ur breath as they may not supply.