EOS/Weightmans claimform - old Grattan PLC CAT debt

[42man]

ok well you have clearly disputed the matter. If they have failed to provide you with a CCA then the debt is unenforceable.

 

I presume you want to defend this....so you have to respond within 14 days of the date on the claim....you then get another 14 days to submit a defence.

 

I would send the opposing solicitors this letter by recorded delivery.

 

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).

[42man]

Send this to Weightmans by recorded....

 

Dear Sirs

 

I refer to your letter of (date) 2008 which was received today.

 

Frankly, I am surprised of the need to advise a firm of solicitors about the terms and conditions surrounding my Consumer Credit Agreement requests (Consumer Credit Act, 1974); (dated XXXX) for which I have proof of receipt . I can only assume therefore that they failed to inform you of their non compliance. Your client had until (date - 12+2 working days)2008 to comply with a legal request.

 

Should you client continue with legal action as stated in your letter, I will welcome the opportunity for a judge to look at several offences committed by (original creditor) under The Consumer Credit Act, 1974, as well as your client’s non-compliance with and total disregard for the law on this occasion

[42man]

Go on to MCOL and state your intention to defend ALL of the claim....

[42man]

Can you type up the Particulars Of The Claim....don't be too specific...

[42man]

What does it say on the claim form ? the POC

[42man]

ok acknowledge the claim in the first instance saying that you are defending ALL their claim....

[42man]

Send off the CPR letter as in my earlier post #2 (send it by recorded delivery).....and wait and see if anything comes back....it is too early to submit a defence. BUT keep a sharp eye on the timescales....

[42man]

14 days to acknowledge the claim (which I think you have done) then you have another 14 days to submit a defence - so basically 28 days from the date on the claim to get your defence in...

[42man]

Be strong Little E !! sit down and have a coffee or something stronger....the fact that they haven't got your CCA is a complete defence....they have to provide you the paperwork you have asked for....and if Weightmans want to carry on with this then the CPR means they HAVE to get it, you have done all that is reasonable to get the CCA, the CPR means they have to comply.....

 

Keep us posted, and as mentioned before keep an eye on the timescales...give me a shout 3 days before the 28 days is up....

[42man]

What did you write in your defence Little E ???

[42man]

Firstly don't worry....send this to the courts ASAP....

 

Put the case name / number up here....

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

 

Defence (addendum)

 

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
   
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 18. In this regard I wish to draw the courts attention to the following matters;


1. 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.
   
2. 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.
   
3. 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.
   

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

[*]Further to the case, on (date you sent your CPR18 request) I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

[*]To Date the claimant has ignored my request under the CPR, which was received and signed for by the claimant on (date they received your CPR18 request) and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested

[*]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 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. 
   

2. The defendant has also sent a formal request under the Consumer Credit Act 1974 for a copy of my consumer credit agreement this was sent to (name) This was received by them on the (date they received it) To date this legal request has not been complied with and they are now in default of my request.

   1. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 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
      
   2. Notwithstanding points 7 and 8, 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
      
   3. The claimant is therefore put to strict proof that such a compliant document exists
      
   4. 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.
      
   5. Notwithstanding point 11, 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)
      
   6. 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)
      
   7. 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 assess if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
      
   8. 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 18.
      
   9. 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.
      

   17. In addition 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 before 6th April 2007 the Consumer Credit Act 1974 is the relevant act in this case.

    

    

    

   Statement of Truth

    

   I, believe the above statement to be true and factual

   
   
3. Number of repayments;
   
4. Amount of repayments;
   
5. Frequency and timing of repayments;
   
6. Dates of repayments;
   
7. 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
   

Edited September 4, 2008 by 42man

[42man]

You obviously went straight ahead and after acknowledging the claim, filled out the defence.....

 

NO worries....print out FILL IN THE DATES....and send ASAP...take it to the courts if necessary....

 

Do you know when the defence deadline is ?

 

(31 days after the date of the original claim)

[42man]

Ahh spotted...the date of the claim is the 14th August....you have another few days to submit the defence....obviously you have had nothing back from Weightmans...!!

[42man]

Just edited the defence....

[42man]

I can't make any promises Little E....but this is a standard defence (with a little editing) that is usually used when they can't produce the paperwork....

 

Keep us posted....and PM me if you need anything else...

[42man]

Little E....i'm not sure of the next move to be honest...but what I will do is move this to the Legal Issues forum....I'm wondering if you can possibly request the court to strike out the claim....

[42man]

Dear Sir/Madam,

Your help desk has informed me that my case has been stayed due to the fact that the Claimant has failed to contact yourselves within 28 days after receiving my defence.

On the XXXX 2008 I requested under the Civil Procedure rules that the claimant furnish me with certain information (see attached letter) which would prove that they had the legal right to undertake Court action against myself with respect to the alleged debt as well as to permit me to submit an appropriate defence, to this date I have received nothing from the claimant.

In light of the fact that the claimant has failed to contact yourselves within the prescribed time period and has failed to provide me with the Statutory required proof that they can undertake Court action against me with regards to the alleged debt I respectfully request that the Court Strikes the Claim out.

[42man]

Edit as required and send to the court Little E....