HSBC Claimform - M&S creditcard.

[willow1261]

Hi everyone.

 

I am new to this and still working my way round the site. Can i say what a fab site this is. I have had successes with Rockwell, Blair Oliver & Scott and a grovelling letter from MBNA!!!! admitting data protection misuse all thanks to advice obtained from CAG. I have stumbled by the wayside with DG solicitors though. I have sent a CCA request to them, which they have not responded to and now the account has passed the 12+2 working days and is in legal defult. They have responded now with a court demand through Northhampton recd on the 22 Aug. I have responded with the CPR letter and sent it registered post for them to receive today. They have not sent a defult letter or acknowledged CCA request. I am starting to formulate my court defence to make sure I do not miss the deadline. They have given no propper warning and seem to be in an incredible hurry to get me into court. As they are not legally in a position to go to court over this can anyone give me a reason why they should persue this course of action? Does this mean that this is a last chance saloon attempt to regain money from me by defult by hoping that i wont submit any defence as it seems to me that they cant have the CCA agreement as surely they would have sent it to me. I wont be bullied in this way, for just exercising my legal right,and want to fight back in any way I can. I dont deserve this!! Any help or comments would be greatfully received.

Stressed but not down and out yet!

 

Willow

[Ell-enn]

Hi there, glad you have found CAG helpful in the past, and I'm sure you will get all the help and advice you need this time too. Have you acknowledged service on line?

 

I am moving your thread to the Debt Collection Industry Forum so it will get the best visibility.

 

Kind Regards

 

Ell-enn

[palomino]

Very briefly : in your defence you must state that the claim is purportedly based on an agreement which they have failed to produce. You will be requesting that the original is produced in court.

 

You could/should request that a copy be provided to you under CPR prior to lodging your defence.

 

As to why they are pursuing this course of action ... because they think they can steamroller you into giving up.

[letsmakeamark]

Counterclaim against them for non compliance with the cca request.

[Sirensinger]

Hi Willow

 

I had exactly the same situation with DG, who actually managed to get 2 CCJs by default - I have today won in court and got the first of these set aside on grounds mainly of there being no CCA. I have seen a post on here saying that they issue claims thru northampton court because the bulk centre there doesn't ask for proof of the agreement - mine was then transferred to my local court for enforcement.

 

I am going to write up the case in the legal successes. Still getting over the shock of actually winning at the mo. But don't let them get away with it - in my case they actually wrote to admit that they didn't have the agreement, then tried to mislead me that it wasn'r required, then tried telling me that my 'original request hadn't been received - when it had been replied toand the fee put towards the debt by Metropolitan DCA. Finally, 9 months after my Request under section 78, they produced a blank agreement form and tried to argue that the Regulations 1983 allow for this. I don't know how much you already know about this area so won't bore you with more details unless you need it, but I have been helped immensely by people on here when it came to pointing me to the right documents and sections for evidence etc and I would like topass this help on, so please pm me or post on here if you'd like further advice.

 

Good luck

 

Sirensinger

 

Ooh I forgot to say that DG were going for a Charge on my house - I reckon this is their tactic, they get CCJs by default if they can, then demand forthwith payment, then when you can't comply they go for a charge and get their money that way. So whatevr you do, don't miss any deadlines, and get your defence n counterclaim in so they can't get to the point they did with me!

 

More details of my case later,

 

Sirensinger

[palomino]

I have seen a post on here saying that they issue claims thru northampton court because the bulk centre there doesn't ask for proof of the agreement - mine was then transferred to my local court for enforcement.

 

No court asks for anything. Judges consider what is put before them by the parties involved as evidence. They don't ask for evidence at all.

That is why it is important to ensure you have all the evidence you need as no-one else is going to produce it for you. In particular you have to ask for the original agreement to be produced [by the claimant] because if you don't they won't. You have to remember that the claimant is the opposition and they play for keeps. They aren't going to be 'nice' to you at all.

[maroondevo52]

Hi, Sirensinger.

 

Offering to advise members by PM or email - If it is felt that a subject is "sensitive" and would be better discussed off-forum, we ask that members contact a member of the site team BEFORE asking for contact details. This rule is in place to protect our members from clams touts, and also to ensure that any advce given is open to debate, qualification, and where necessary, correction.

 

 

Regards.

 

Scott.

Edited August 29, 2008 by maroondevo52

[letsmakeamark]

YOU HAVE GIVEN ME A IDEA. PLAY THE BANKS AT THEIR OWN GAME AS WELL.

[Helios]

I've just dispatched this lot with unenforceable credit card, sent it back to their client so they say

 

Ask for proof of the agreement in your CPR Part 18 request to DG solicitors you will either write back to you, they have no intention of replying with request or send you nothing at which puts you in the driving seat

 

HSBC will say their paperwork is in order

[willow1261]

thankyou all for replying and all your help.

 

i have recorded and detailed everything to do with these solicitors??

I have acknowledged the claim to the court on line and sent the CPR part 18 request by special delivery to them.

 

As yet no reply!!

Will enter my defence in good time so will not miss the deadline.

They have not even entered an account number on the court form!! what a shower!

 

I think they are trying to frighten me into paying, and also trying to get in the back door going through northhampton, hoping i will panic and not understand the legal process, and therefore will not fight back.

 

I dont understand the legal process but i am learning and with all your help i will fight back!!! thanks again for all your help. i will keep you all posted.

XXX willow

 

Thks SirenSinger for your help. if they produce a blank copy of credit agreement i will ask for your help if i may. i havnt come across that as yet..

 

xxx willow

[willow1261]

I have just received a letter back from DG sols with an application form which they have advised me is a credit agreement.

 

It has no required terms or prescribed terms apart from a credit limit which i ticked on the form.

 

They have sent T&cs which are very hard to read.

It is obviously taken from a microfische .

A set of statements from nov 2003.

They have also sent me a copy of a copy of a default notice which they have confirmed they sent to me.

 

This default notice is a computer copy without my name or address or date or any reference to any amounts outstanding.

It is a template letter. ( I dont recall receiving any such letter. addresed to me)

 

they have also sent a letter addressed to MR A Sample which details the changes fo the M&S card from charge card to credit card. They insist I would have had this letter!!

 

They are also querying my standard CPR letter which they took a month to reply to, making it so I did not have this infomation from them when I filed my defence in court. I quote from their letter

We refer you to CPR 31.6 which states that standard disclose requires a party to disclose only;

the documents on which he relies &

the documents which

adversley affect his own case.

adversley affect another partys case or

support another partys case

the documents which he is required to disclose by a relevant practice direction.

CPR31.7 states that

when giving standard closure a party is requested to make a reasonable search for docs. falling within rule 31.6(B) or ©

 

Reasonableness of a search include the following

 

1. number of docs involved

2 nature and complexity of proceedings

3 ease and expensive of retrieval of said docs.

4 the significance of any doc. located in search.

 

In order to establish whether any additional docs.requested within CPR request are reasonable and relevant, we would be grateful i you could advise what issues the documentation are relevant to and each head which it falls within.

 

 

Has anyone else had this happen to them or can any one advise mewhat my next move is. I have a week to reply . is this an attempt to put me off my stride?

 

Is a template default letter with no details accepted in a law case or a letter addressed to mr A sample ?

 

As they ignored my cca request and this court action is unlawful and can be proven every step of the way can is sue them for stress and distress and defamation of character?

 

Has anyone ever done this??

 

PLease help me or i think my head will blow up..

 

Thanks

Willow

[willow1261]

HI,

 

can anyone tell me if a defult letter which hsbc have advised me they will use in court is legal if it is a template letter.

 

this document has no name, no address, no date and no amounts listed.

 

It makes no sense, as there is computer jargon which should have been edited out and customers details entered.

They advise me that i would have received this letter!!

 

surely a judge would expect a letter to make sense and have all relevant details on it! (LIke the name of the person it is intended for etc.)

 

I do not have a defult letter with my paperwork and i wonder now if it was ever sent as hsbc do not seem to be able to supply the original copy.

it was only issued in oct last year so not ages ago.

 

They also want to use another document in court against me addressed to MR A sample who lives in Sampletown.!!

 

Whats going on????

 

can someone help me?

I think im crackin up!!!!

 

willow:evil:

[Multay]

Hi,

 

There are very strict rules as to the wording of a default notice for it to be considered a legally binding document.

 

Can you post more details?

 

POC for the case

Was it credit card or overdraft?

What documents have you requested from them if any?

When are your court dates?

 

Don't panic, there are many on here who will be able to help..

[willow1261]

Sorry, something else i forgot.

 

they are querying the CPR letter i sent them quoting me cpr rules 31.6

and .31.7

saying basically that they only have to provide docs they are to rely on on court, and that anything they deem to costly in time and money could be classed as unreasonable and not relevant to proccedings.

 

they are asking me advise what issues the requested docs are relevant to and to each head which it falls within..

 

They have provided

 

1 application form with no prescribed terms on signature doc, which they say is cca form.

2 computer generated defult notice with not even a name or address on it.

3 statements from nov 2003 and not 1996 when the account was originated.

 

4. letter addressed to mr a sample of sampletown of change of conditions from chargecard to credit card.

 

Surely these items can not stand up in a court of law!!

 

All this and the account is in legal defult as they did not respond to my CCA request. They issued in Northampton 4 weeks after ignoring said CCA request, which i can proove they received by registered post.

 

im feeling a harrasment case coming on!!!

 

i have to reply to them within a week..

 

Willow:evil:

 

 

Lost!!!!!

[42man]

These are the default requirements...

 

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

This is one defence which highlights the importance of the paperwork supplied under the Civil Procedure Rules...

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

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

 

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

 

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

 

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

 

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

 

c) No account number is contained within the particulars to enable me to identify the account on which this claim is brought

 

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

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

6. On xx/xx/2008 the claimant supplied a copy of an application form, annexed to this defence marked exhibit CP2, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. Accordingly I wrote to the claimant setting out the issues

 

7. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received

 

The Request for Disclosure

 

8. Further to the case, on xx/xx/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 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 failed to comply with 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 CP)

 

 

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

 

 

10. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

11. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

 

 

12. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the consequences of such failings mean that the agreement is rendered unenforceable by section 127(3) of the Consumer Credit Act 1974

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

16. It is submitted the credit agreement 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. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreement

s

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore 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."

19. 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

 

20. Notwithstanding point 15, 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

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

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

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (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.

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

29. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

33. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

34. In view of matters pleaded, I 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.

35. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

36. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, 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.

 

37. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

[willow1261]

Thks for getting back to me so quickly,

 

I have already filed my defence with the court and i completely defended the claim.

 

i did not have the docs from the solicitors as they took approx 4 weeks to send me them and i did not want to go over the 28 days allowed for the defence. I sent the standard CPR letter from this forum to them.

This is a M& S creditcard.

 

Can i sue them for defamation of character or stress or distress caused?

 

They have acted unlawfully approx 5 times within this account that i can prove.

And all their documentation seems to have massive holes in it.

( well to my untrained eye anyhow!!)

 

stressed but fighting back now!!!

willow

 

Thks for that 42man

 

parts of that will come in very handy when i send them a complete snotagram next week. I think they are querying the CPR letter because of the 6 year bank rule and maybe they dont have all the info requested.

i think they thought i wouldnt defend and that the would get a ccj automatically.

 

they were wrong!!!

 

willow

[42man]

If they give an excuse for not keeping documents for 6 years....then this is hardly your fault !!

[willow1261]

just as long as i know that they can not expect to use a template letter or a letter addressed to mr a sample in court.

I did think it would be highly unlikely, but you never know!!!

why would they send these items officially

if they are unusable??

intimidatory tactics or what??

 

willow

[The GodMother]

well i am guessing that you are not Mr A Sample so i dont think they could say they are ones that were sent to you. I would assume they need to provide exact copies of all docs that were sent to you.

 

Now u are saying they have not provided all statements claiming the 6 year rule.

 

Well the good news for u is the 6 year rule applies to accounts AFTER they are closed. All important Docs need to be kept for 6 years AFTER the acc was closed so u would assume that statements CCAs DN NOAs etc were important docs. Also this is against verious money laundering regs so let them answer that one.

[42man]

Willow...another defence here that you might be able to use....differs from the one above...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/119326-capquest-court-summons-received-5.html

[willow1261]

thks to you all for helping me.

 

does anyone know about cpr rules 31.6 and 31.7 and why they are querying the cpr letter i sent which i got of this forum?

 

willow

[citizenB]

Willow, a lot of companies are refusing to provide information via the CPR. You might like to try again with the letter that has been provided by surfaceagentx20 in the link below. It is in the first post.

 

The idea is to ask for those documents they list on their claim form and those you specifically require to submit a proper defence. It seems to be having more success than the letter you have sent.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[willow1261]

thanks for that citizenB, will take a look..

 

Feel much happier now i have taken a deep breath and looked at the paperwork again and seen that it makes very little sense.

[citizenB]

I think sometimes you can suffer from information overload. It might be a good idea to take some time away from it.. then when you revisit it, you can see things a little more clearly.

[willow1261]

have now been sent a form for me to fill in to withdraw my defence as they say they have now complied with cpr letter and produced all relevant documents!! ( which they havnt!!) they are trying to make out they can go ahead with the judgement anyway wether i sign or not. i would rather go to court as i have a good case. As long as i tell them i wont withdraw defence will this force them into court and will it be transfered to my local court ? i know they want me to withdraw defence to make it easy on them, also if i do that wont they also get a judgement by default?

Sick of these bullys

can someone point me in the right direction

thks

willow