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Court claim from Lloyds TSB - Advice needed please.


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Hi, this is my first post but I've been lurking for a while and following advice given on other threads and in the stickies.

 

Lloyds TSB have been chasing me for a debt of just over 6.5K which due to personal circumstances I've not been able to pay. It's not been passed to a DCA but I have been chased on behalf of the OC by the firm of Sechiari, Clark & Mitchell Solicitors for the full balance, monthly payments or partial payment in full and final settlement.

 

After reading advice on these forums, a year ago I sent the OC a formal request for a copy of a properly executed CCA with appropriate T & Cs to which they replied a few weeks later.

 

Accompanying the letter was a copy of the 2006 T & Cs (my account dated from 1998 by the way) and a photocopy of a credit card application form (which is largely illegible) and associated T & Cs (completely illegible) - the letter states that this is "the best copy available."

 

At the bottom of the photocopy of the application was the top half of a similar application form pertaining to someone completely unknown and unrelated to me, including their name, address, account number and home and work telephone numbers. That was bad enough, but also included in the envelope was a full photocopy of an additional application, again pertaining to someone totally unknown to me and containing all their personal details and a copy of their signature. :eek:

 

I did not consider that these shabby pieces of paper fulfilled the particulars of my request or the statutory obligations of the OC so I ignored them and heard nothing more for almost a year when out of the blue Sechiari, Clark & Mitchell Solicitors contacted me with a demand for full payment and threatening legal action.

 

Again I took no action and have now received a court claim from Northampton in the name of the OC. I'm not sure what to do at this point so would welcome any advice.

 

Once I have made five posts I'll then be able to post scans of the documents in question on this thread so a bit of dialogue would be helpful to get me up to 5 posts! :-)

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OK they are basically attempting fraud by sending you somebody elese's agreement...and a judge will no tbe very pleased.

 

In the first instance you have to acknowledge the claim within 14 days on the date of the claim, I presume you are going to defend ALL of it...!! Then you get a further 14 days to submit a defence.

 

Send this to Sechiari Clark & Mitchell....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. I note that your last attempt to send me a consumer credit agreement, you sent me somebody else's agreement, and some other pieces of paper which were illegible.

 

 

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).

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PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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Hi

 

You must head the above letter REQUEST FOR INFORMATION CPR 18

otherwise they will ignore it.If you can change your template 42man we had problems off other posters sending the above

 

Regards

 

Andy;)

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Hi Joan of Arc,

I would post a few more posts in this thread to get up to the five posts required.

You could say hi to me,then 42 man and then Andy, for starters.

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For attractive lips, speak words of kindness. For lovely eyes, seek out the good in people. For a slim figure, share your food with the hungry. For poise, walk with the knowledge that you never walk alone. People, even more than things, have to be restored, renewed, revived, reclaimed, and redeemed; never throw out anyone. Remember, if you ever need a helping hand, you will find one at the end of each of your arms. As you grow older, you will discover that you have two hands; one for helping yourself, and the other for helping others. :)

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Hi Joan of Arc,

I would post a few more posts in this thread to get up to the five posts required.

You could say hi to me,then 42 man and then Andy, for starters.

 

Hi questioning :) Sorry I didn't come back on the thread yesterday, I've got tonsilitis coming on and went to bed early. :|

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OK they are basically attempting fraud by sending you somebody elese's agreement...and a judge will no tbe very pleased.

 

Thanks 42man. I don't know what their intentions were, but included along with the original application form were also details of two further customers. Is this their way of saying "Look how sloppy we are with our customers' details. Be scared. Be very scared." ?

 

Because it doesn't scare me.

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Hi

 

You must head the above letter REQUEST FOR INFORMATION CPR 18

otherwise they will ignore it.

 

Hi andyorch. Thanks for that. What do you mean, "otherwise they will ignore it"?

 

Is there a filter system in place to weed out communication with key phrases?

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Because it doesn't scare me.

 

I'm not trying to be hardcore here, btw. They have scared me in the past. Before I knew the score, I've had a credit card operator from one of the major companies (I can't remember which one, this was years before I started taking notes and making records) on the phone to me on an Easter Sunday lunchtime whilst I was cooking dinner for the family, hissing insults at me. Eventually, when I was in tears, beseeching her to let me go as my little boy was hearing everything, she...

 

...got worse and harrassed me even more. By the time I finally had the temerity to hang up I was physically shaking. It's beyond disgusting what they're allowed to get away with...

 

I wouldn't have digressed but I need to get up to five posts.

 

So...back to the nitty gritty. Here's the relevant docs:

 

(Pause whilst I make a cup of tea.)

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Does this shed any more light on the matter? Should I just send off the template given by 42Man with REQUEST FOR INFORMATION CPR 18 as suggested by Andyorch at the top? Any advice welcome :)

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Andy huge thanks for pointing out the CPR piece for me !!! much appreciated...and yes Joan send off the CPR 18 request.....asap...by recorded / guaranteed... - keep a close eye on the timescales for submitting the defence...and keep us updated here

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Andy huge thanks for pointing out the CPR piece for me !!! much appreciated...and yes Joan send off the CPR 18 request.....asap...by recorded / guaranteed... - keep a close eye on the timescales for submitting the defence...and keep us updated here

 

OK, many thanks, I will keep you all updated, over and out for now...8-)

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I do very little but I do it very, very well :cool:

 

If I've helped give my scales a click

:smile:

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

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Thanks 42man, I filled out the acknowledgement online. OK now I have to submit a defence. Would someone be so kind as to direct me to a template I could customise, or do I have to do this from scratch?

 

I am also in the process of setting up a limited company for the first time. If I lose the court case, will this affect my right to keep my company?

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If you have a CCJ then it won't affect you, but it may affect your ability to get credit....

 

Have you had anything back with regards to your CPR 18 request at all ?

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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If you have a CCJ then it won't affect you, but it may affect your ability to get credit....

 

Have you had anything back with regards to your CPR 18 request at all ?

 

No, 42man, I haven't. I promise I will be straight on here with a scan the minute I get a response!

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  • 2 weeks later...
If you have a CCJ then it won't affect you, but it may affect your ability to get credit....

 

Have you had anything back with regards to your CPR 18 request at all ?

 

Hi 42man, I've not had any response to my CPR 18 request, in fact I've heard nothing at all. Time is now getting tight, I have to have a defence in within the next 3 working days which has to be based around the inadequacy of the documents they've sent me which I've scanned above (notwithstanding the fact that they also sent me someone else's documents, including personal details address and telephone number as well! :eek:)

 

Would you be willing to help me with the wording of the defence as I'm sure it would carry more weight if it were couched in the right legal terms? :)

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2 options Joan....

 

IN THE (NAME) COUNTY COURT Case No

BETWEEN:

 

 

LINK FINANCIAL LIMITED (Claimant)

 

and

 

 

( GIVE NAME) (Defendant)

 

 

 

DEFENCE

 

 

1 The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

 

2 For want of any or any adequate particularity apertaining to the allegations concerning the agreement, the Defendant's default, its termination and assignment, the Defendant is embarrassed and unable to further plead to the Particulars of Claim.

 

DATED:

 

SIGNED:

 

 

OR THIS....(as they have not complied with the CPR request, if it was me I would go for this one below....)

 

The below info is taken from this thread... - http://www.consumeractiongroup.co.uk/forum/legal-issues/140032-hsbc-county-court-claim.html

 

(HAVE A GOOD READ THROUGH AND EDIT AS RERQUIRED)

 

In the Northampton CCBC County Court

Claim number

Between

HSBC Bank PLC- Claimant

and

 

- Defendant

 

 

Defence

 

1. I xxxxxxx of xxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by HSBC Bank PLC.

 

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 written agreement referred to, the method the claimant calculated any outstanding sums due,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 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 relevant Act of Parliament in this Case

 

5. 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.

 

6. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from http://www.statutelaw.g ov.uk/content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanket Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643 accessed Thursday 21st February 200

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.

7. 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

The Request for Disclosure

 

8. Further to the case, on 28/04/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the 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.

 

9. To Date the claimant has ignored my request under the CPR 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, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked Appendix 1)

 

The importance of a copy of the credit agreement and its production before the court

 

10. 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

 

11. 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)

 

12. 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

 

13. 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

 

14. 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."

15. 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

 

16. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

17. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

18. 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).

 

19. 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

 

20. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

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.

21. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

22. 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

 

23. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

The Need for a Default notice

 

24. In addition, there was no default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

25. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

27. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is invalid and further enforcement action should not be taken until such time as a complaint notice be issued

 

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) CCA 1974 which states

(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. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

30. 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 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) should render it invalid

Conclusion

31. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(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.

32. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court.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

 

33. 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, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines 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.

 

Statement of Truth

 

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

 

 

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

 

Date

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PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

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Wow, thank you so much for taking the time and trouble to help, 42man. I'll have a good look through all this tomorrow morning and adjust it as necessary.

 

I'm very grateful for the help you're giving to me as a complete stranger and I really appreciate it.

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42Man, I favour your longer one out of the three suggested. However, I found one on another thread that seems to fit the bill, so I've adapted it a bit. It's a bit shorter than the one you posted and doesn't have as much case law referenced, but I'd be grateful if you'd give me your opinion (and I welcome anyone else's opinion too). Thanks. :)

 

 

In the Northampton County Court

 

 

 

 

 

Claim number XXXXXXXXX

 

 

 

 

Between

 

XXXXXXXXXX - Claimant

 

 

 

and

 

 

 

XXXXXXXXX - Defendant

 

 

 

Defence

 

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, pursuant to Civil Procedure Rules (“CPR”) Part 16.5.

 

2) The claimant’s statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. 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 accounts referred to, the method the claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant’s claim.

 

The Credit Agreement

 

3) On the XXXXXXX I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569, Regulation 2.

 

4) For clarity, s78(1) CCA states:-

78. Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

5) s78(6) of the CCA sets out the consequences of failure to comply with such a request and states:-

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

6) In response to this, the Claimant sent a copy of what they freely admitted to be a copy of an application form, which was largely illegible, and which did not contain all of the prescribed terms required by the CCA. Separate copies of Terms and Conditions were supplied but these were the Terms and Conditions for 2008, which relate only to new accounts, and which are not the Terms and Conditions which were relevant, at the time of alleged contract, to the account in question. Furthermore, no documents relating to the right to cancel were provided by the Claimant. The supplied document clearly states "you have the right to cancel" yet no cancellation notice has been supplied nor are there any of the details relating to how to cancel which are referred to in the document. I note that the burden of proof is upon the claimant to prove they did indeed send cancellation details and notices as per the ruling of ANGLO LEASING PLC v. PASCOE and ANOTHER [1997] EWCA Civ 895 (31st January, 1997).

 

7) Therefore it is averred that the Claimant has failed to discharge their obligations under s78(1) of the CCA and as a result has no right of action, by way of s78(6) of the CCA, to enforce this agreement while their non compliance continues.

 

Enforcement of the Agreement

 

8) It is denied that the application form supplied by the Claimant is a valid executed agreement under the CCA. For a credit agreement to be enforceable it must contain all of the prescribed terms as laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

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

 

9) The courts attention is drawn to the fact that where an agreement does not have the prescribed terms required by the CCA then it is not compliant with section 60(1) CCA and therefore not enforceable by s127 (3). The court’s 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.

 

10) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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.”

 

11) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists

 

Default Notice

 

12) It is neither admitted nor denied that any Default Notice in the prescribed format required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.

 

13) Without prejudice to the above, I put the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

14) 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 s87(1) CCA, which states:-

S87(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

 

15) I note the opening part of section 88(1) CCA, which states:-

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form.......

 

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

 

16) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

 

17) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

 

18) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 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 comments of Kennedy LJ:-

 

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

 

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice.

 

19) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

Notice of Assignment

 

20) It is denied that any Notice of Assignment was correctly served on me as required by the Law of Property Act 1925. I therefore put the Claimant to strict proof that said document in the prescribed format was sufficiently served on me in accordance with the Law of Property Act 1925.

 

21) Failure to comply with the Law of Property Act 1925 renders any assignment of the debt ineffective and so the Claimant would have no right of action.

 

Conclusion

 

22) The claimant has failed to supply any supporting documents with the claim form and has not provided a valid, enforceable agreement. 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 could not make an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not fully comply with the provisions of the Consumer Credit Act 1974 and the subsequent regulations, then the lender does not have any recourse, and they cannot side step regulation by any other means, and whether 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.

 

23) 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.

 

24) 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 in XXXXXXXX, 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

 

 

Signed

 

XXXXXXXX

XXXXXX (date)

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Joan i've asked somebody who is more qualified to give it the once over....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Hi joan

 

Difficuilt to advise without the details of the Claimants P.O.C I have re checked your thread but for the life of me cant see any reference to it?

 

 

Regards

 

Andy;)

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