Eversheds County Court Paperwork / **SUCCESS**

[goonerhenry]

postman has been and gone yet again and still nothing from eversheds, so touch wood they cant find copies of any apperwork, surfaceagent any chance you can help compile my defence on this one

[42man]

Henry....this cagger has just recently joined and is battling with Eversheds too, just thought i'd let you know....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/163116-consumer-credit-problems.html

[goonerhenry]

thanks for that, its nice to see that im not the only one, had a quick read through his post and while they are different situations lets hope for a similar outcome

[goonerhenry]

after having a look at a few other peoples defences i came accross this pretty standard one, can someone have a look and see if this is ok for defending this kind of case after no response has been received from a CPR 31.14 request, also is 7 days the right amount of time to wait for a response to the CPR 31.14 or is it 10 days as i have seen both when searching through.

 

Defence

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.

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

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.

 

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

 

 

5.In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

 

 

6.Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (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.

 

 

7.It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8.Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

9.Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 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.

 

10.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. All I have received in relation to my request is a letter from the claimant stating I am placing an unfair burden on the claimant by requesting the disclosure of the said documents.

 

11.It is denied, as suggested in point 10 that it is an unfair burden being placed upon the claimant with regards to my request for disclosure and the courts attention is drawn to the fact the claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents

 

12.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 claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.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.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

 

14.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."

15.Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

16.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

 

17.Notwithstanding point 15, 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)

 

18.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

 

 

19.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20.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 and Practice Direction 16.

 

21.Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

22.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 Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

 

23.I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

[42man]

It looks ok on the face of it...but I would get another opinion such as PT or Andyorch or Surfaceagent....

[goonerhenry]

thanks for that, if someone else could have a quick look and see if this is ok, also what do i need to send back and to who, do i just need to send my defence to the courts?

[goonerhenry]

bump

[goonerhenry]

hi, could someone please have a look and see if the defence looks ok, its just i could do with getting this off to the courts before the end of the week

[citizenB]

henry, it might be a good idea to pm one of the peeps that 42man mentioned. Just put a link to your thread and request a visit

[goonerhenry]

i have tried that but as of yet no response

[surfaceagentx20]

Hi Gooner,

Sorry the mailbox is full and I've been tied up on 'proper' work.

 

How's the draft Defence below seem to you?

 

1 The Defendant admits entering into an agreement with MBNA and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which MBNA and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 No admissions are made as to the terms, conditions or other provisions of the sale agreement alleged to have been made between the Claimant and MBNA. Further, if by the sale agreement alleged the Claimant acquired a genuine commercial interest therein, notice was not given to the Defendant of the Claimant's acquisition thereof.

 

3 Without prejudice to the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits the receipt of the default notice relied upon by the Claimant, namely a notice dated 19 December 2006. Save that the notice was served upon the Defendant on a date thereafter and that service was by post, the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her. The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was before 2 January 2007 which was not a date which was 14 days after service of the notice.

 

4 Further to the matters set out at paragraph 3, the Defendant avers the Claimant terminated the agreement on or after 2 January 2007 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraph 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8 The Claimant’s claim to be entitled to £6,xxx.xx or any other relief following termination of the agremeent is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Dated:

 

x20

[goonerhenry]

brilliant mate, so rather than going for them not coming up with a credit agreement, im hitting them with the fact that i admit the agreement, but the default notice hasnt been served correctly is that right?, do i just send the above back to the courts or does a copy need to go to eversheds?

[surfaceagentx20]

That's about it. you admit entering into the agreement though you do not admit it is enforceable. You do not admit that Arrow acquired an interest in the agreement but without prejudice to such contentions, say that if they did, the DN is ineffective to give rise to the claim they now make owing to the failure to provide you with not less than 14 days following service to comply. And then there's some stuff thrown in about penalty and admin charges.

 

If you are happy with it, just sign and date and send it to the court. The court will send a copy to Eversheds.

 

x20

[goonerhenry]

cool thanks allot for your help, do i need to include a copy of the default notice?

[surfaceagentx20]

Nope

 

x20

[goonerhenry]

excellent, once again thanks for the help, will let you know when i get a response from anyone

[goonerhenry]

just getting the defence ready for posting, do i need to complete the defence form paperwork that came originaly, or just print off the above and send that in?

[surfaceagentx20]

If you print off and sign, you must head up the Defence with the title of the case like this:

 

IN THE (NAME) COUNTY COURT

Case No: (Case No)

BETWEEN:

(Claimant's Name)

Claimant

and

 

(goonerhenry)

Defendant

DEFENCE

x20

[goonerhenry]

thanks again mate, i didnt fancie spending 3 days writing it up on there crappy form, so thats saved me RSI anyway, do i need to include anything else or just the signed defence?

[surfaceagentx20]

No nothing else so long as you remember to include the cheque for £500.00.

 

x20

Edited October 17, 2008 by surfaceagentx20
before you ask .. only joking about the cheque

[goonerhenry]

**** me my a****hole shrunk to the size of pin hole, thanks for that one

[goonerhenry]

right i have received an allocation questionaire from the courts this morning, is this normal?, it says i have to return it by the 7th of november, is there anything i need to be wary of or are they pretty stright forward to fill in?

[goonerhenry]

bump

[42man]

Hi Henry...i'm not too sure on these i'm afraid, but these links might help you...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/158235-help-allocation-questionaire-soon-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[goonerhenry]

thanks for those 42man, surfaceagent if poss mate can you advise on which parts i need to be filling is, as looking through 42man's links they are for cases that have failed to produce docs, which eversheds have failed to do, but as im admitting to entering into a agreement i dont want to send of anything that might contradict what im claiming, thanks in advance.