Arrows/Marlins Claimform - old LLoyds loan no CCA-**WON..DISC'D+COSTS**

[robcag]

Hi ww

 

Regarding your argument about the validity of, or missing default notice, although I'm not an expert, IMHO it might be good to include in your defence a reference to case law (and a quote thereof) to back that up.

 

There are many defences (including 'holding') around the forums mainly courtesy of pt2537 which quote the relevant case law.

 

If you get stuck finding one, post back and I'll point you to the defence Paul (pt2537) drafted for me.

 

Cheers

Rob

[robcag]

Hi ww

 

Further to my post (#26) above, I've just had a quick look back through your thread. Correct me if I'm wrong, but it seems you haven't been provided with any of the relevant documents (Default Notice, Credit Agreement, Notice of Assignment)?

 

If so, then here is a sample defence courtesy of pt2537 (I think?) which covers those circumstances. It can be found here;

http://www.consumeractiongroup.co.uk/forum/legal-issues/151231-asset-link-produced-cca.html#post1605632

 

and I've copied it in full for you below. Obviously have a good read through and try to understand the references etc and it may need to be edited slightly to suit your circumstances.

 

 

 

 

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 xxxxxxxxxxxxx

 

2. 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.

 

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

 

4. 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 default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt 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.

 

.

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

 

Credit account

 

7. The account no xxxxxxxxxxxx referred to relates originally to a credit account and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia

 

(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

 

8. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

 

9. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

 

10. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

 

11. The Claimant is therefore put to strict proof that such agreement exists

 

The Request for Disclosure under the CPR

 

12. On xx/xx/2007 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 between 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.

 

13. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007

 

 

14. 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

 

Consequences of Non Disclosure of the agreement

 

15. 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 asses if the documentation the claimant would need 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)

 

16. 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

 

 

 

 

17. 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

 

18. With regards to the Authority cited in point 17, 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

19. 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

 

 

20. 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 (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) 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.

 

 

 

The default notice

 

21. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

22. 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

 

23. Notwithstanding point 18, 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)

 

24. 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

 

 

Deed of Assignment

 

 

25. The defendant requires sight of the deed of assignment of the debt from (original creditors name) to (DCA name) , for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt from (original creditors name) to (DCA name)

 

Conclusion

 

26. 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.

 

27. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

.

28. 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. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

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

 

Date

 

 

I'm not an expert, but I hope the above gives you a little more insight, and provides you with a stonger defence.

 

Cheers

Rob

Edited September 13, 2008 by robcag
added the words 'I think?' (in red)

[robcag]

PS ww

 

I forgot about your alleged debt being statute barred, so you will need to add that into Pauls defence if you decide to use it.

 

Cheers

Rob

[surfaceagentx20]

How you plead your defence is entirely a matter for you. You have my draft available which you appear to have taken advantage of. I would especially urge you, and as a matter of good practice, not to plead as grounds of defence, the absence of or any previous demands for the disclosure of evidence, any case law and any quotations from authors however esteemed they may be, found on websites or any where else for that matter.

 

x20

[tinkerbell20]

Yes thats better going into the witness statement at a later stage

[chrisb333]

Guys, im getting confused again.

 

some say don't defend the CPR not being submitted, some saying defend it, anyone got strong views why or why not?

[robcag]

Sorry folks, I didn't want to cause any controversy or confusion, but with the way some of the Judges appear to be uneducated in consumer law, I just thought better safe than sorry.

 

Cheers

Rob

[tinkerbell20]

Sorry folks, I didn't want to cause any controversy or confusion, but with the way some of the Judges appear to be uneducated in consumer law, I just thought better safe than sorry.

 

Cheers

Rob

 

 

They can be educated in your witness statement. Have yoo sent the CPR letter SFX20 suggests?

 

Tinks x

[wakeywakey]

Guys, im getting confused again.

 

some say don't defend the CPR not being submitted, some saying defend it, anyone got strong views why or why not?

 

 

Thats 2 of us then.

Dont quite know what to do now!

[wakeywakey]

Guys, any additional advice from anyone has to whether I defend the fact that they refused to send me the CPR request.

[creditcardmug]

Guys, any additional advice from anyone has to whether I defend the fact that they refused to send me the CPR request.

 

I dont think it matters that much but, if you have asked them for more info in order to investigate their claim and they have failed to provide it then its not going to look very good to a judge.

 

Thats just my opinion, but others dont always agree, you get to ask again for documents to be disclosed when you do your draft order for directions in the AQ.

[surfaceagentx20]

I've given mine. It was 'I would especially urge you, and as a matter of good practice, not to plead as grounds of defence, the absence of or any previous demands for the disclosure of evidence..'

 

I can't put it any simpler.

 

x20

[wakeywakey]

Sorry guys, I must be really thick cause I dont understand what you are saying?

 

I was advised to send for the cpr18 request as the claim is supposed to be unenforcable without the agreement, is this correct?

 

If so, how do I defend my case when I haven't got the agreement?

 

Also, if your saying don't add that to the defence, whats to stop the creditor simply supplying the agreement at the hearing, thereby leaving me without a case (even though I will have had no time to defend anything)?

 

I am really getting confused and the defence has to be in by 24th Sept 08, so I could really do with some putting right

 

Am I missing something here?

[surfaceagentx20]

Sorry, I could have been clearer and I see from an earlier post of yours that you were wondering about inserting a paragraph about the CPR Request. No, do not insert such a paragraph. Your defence as it reads in your post no25 is fine.

 

x20

[creditcardmug]

When you file your defence the court will send a copy to the other side they then have 28 days to decide whether to continue, if they continue the court will send you both a form called a Allocation Questionaire (after the claimant has paid a further fee).

As part of filling in this form you will ask the court to order further directions, in these draft directions you will ask for all the documents you require (as will the other side), and the judge will make an order based on this.

This is known as disclosure, which is what x20 means when he says theres no need to ask for disclosure before the AQ stage.

 

Hope this helps you to understand the procedure a little bit more.

[wakeywakey]

OK, Thanks x20

 

Problem is, no-one seems to be answering my concerns.

 

Which are.

 

1. What was the point of me requesting the cpr18 if it has no importance?

 

2. What if at the hearing the creditor simply supplies the agreement?

 

3. Doesn't the court take into account the fact that the creditor hasn't supplied the agreement/default notice to enable me to defned?

[surfaceagentx20]

Answers:

 

1 There would have been one if the opposition had been inclined to voluntarily answer it, but in the form it was delivered it received a refusal. The refusal did not surprise me. To have contested the reasonableness of the refusal would have requried an application to the court. I don't recommend such an application, hence in my opinion there was no point.

 

2 The creditor has already advised you they do not have possession of the agreement. Later in the case they will be obliged to disclose all documentary evidence in the case in their possession. I suspect they will never disclose the agreement so run the defence on this basis.

 

3 Yes it does. Indeed, the absence of such documents operates in your favour.

 

For more info about acquiring the early disclosure of vital documents in a case, read this thread.

 

x20

[wakeywakey]

Hi x20, one of your posts suggest writing to the creditor and asking for a CPR31.14 Request, yet at no stage have I been advised to do this.

 

Is it therefore not in my best interests?

 

I have 12 days to file mt defence

 

Thanking you

Edited September 16, 2008 by wakeywakey
incorrect fonts

[wakeywakey]

anyone else know about this cpr31.14?

[wakeywakey]

One more thing guys, do I actually sign my defence?

 

I'm asking cause I believe this then goes to the claiment who can then see your signature!

 

Blimey, I am getting cynical aren't I?

[42man]

You could sign it differently to your normal signature or put lines through it....

[wakeywakey]

OK, Im doing it online so I dont need the signature anyway.

 

In the defence, when denying the claimants amount, is this just the amount they claim or court costs as well?

[surfaceagentx20]

Just the amount. The costs follow depending which way the court decides the case.

 

x20

[wakeywakey]

Hi x20,

 

Just repeating a previos post in case you missed it.

 

one of your posts suggest writing to the creditor and asking for a CPR31.14 Request, yet at no stage have I been advised to do this.

 

Is it therefore not in my best interests?

 

I have 12 days to file mt defence

 

Thanking you

[surfaceagentx20]

My proposed CPR 31.14 letter is a recently developed creature. To be at its best it should be delivered as soon as possible upon being served. It's sell by date is the date the defence is served. It's value diminishes the nearer time is to the sell by date.

 

At 12 days to go, there would be no harm in sending the CPR 31.14 letter.

 

x20