Court Summons Received Please Help - **WON**

[Ruud]

Hi I've read around the forums a lot but can't find anything similar to my situation.

 

The background is complicated and lengthy but ended up in me sending the S.A.R - (Subject Access Request) & LBA letters to Northern Rock in relation to two (sort of) unsecured loans. They did not send a copy of the Credit Agreement and therefore the debt was unenforceable and they have comitted an offence. However they continued to ring me daily and sent letters including a final demand and a default notice. After receiving the Default Notice they never contacted me again. This was in April 2007 and I was a bit useless and never followed up by putting my claim in to the courts as it seemded too scary.

 

Suddenly in the last month I've been sent another final demand, default notice, and now a court summons from Wallers.

 

Can they do this given they failed to supply the CCA Agreement?

 

And if so shall I send the letter requesting info under the CPR and then send the acknowledgement of service?

 

I can flesh out the bones if anyone has the time to help me, I'm really struggling and if they are succesfull they may end up taking my house....

[palomino]

What was the LBA letter about? What action were you contemplating?

 

Did you get anything back in response to your SAR?

 

"And if so shall I send the letter requesting info under the CPR and then send the acknowledgement of service?"

Definitely.

[42man]

You could send this by recorded delivery to the opposing solicitors -

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[42man]

And watch the timescales for acknowledging defence and submitting it....!!

[Ruud]

Hi Palamino I'll post the letters in photobucket when I get home, I can't remember the exact wording at the moment.

 

Thanks

[Ruud]

Hi 42Man,

 

Thanks for the letter template, it's much better than the current one I have. I assume that the fact they've already failed to provide the CCA Agreement will be used as part of my defence to have the action thrown out?

 

Thanks

Edited October 20, 2008 by Ruud

[creditcardmug]

Hi 42Man,

 

Thanks for the letter template, it's a bit better than the current one I have. I assume that the fact they've already failed to provide the CCA Agreement will be used as part of my defence to have the action thrown out?

 

Thanks

 

What you put in your defence depends largely on what is in their POC, can you post that up leaving out anything personal?

[Ruud]

I have a bit more time to elaborate on my situation now as I think having read numerous other threads that it must constitute all sorts of issues and breaches of the banking code and CCA.

 

I applied for a Loan of £10k over 10 years in November 05, signed the agreement they sent me and returned it.

A few days later I rang them back and asked for it to be cancelled and applied for a new loan agreement for £15k over 5 years, this arrived and my wife signed it on my behalf and sent it back.

Somehow Northern Rock managed to pay me 2 x amounts of 15k and started taking 2 lots of payments from my account.

When I realised what had happened I'd already inadvertently used some of the money, I rang NR who said yes there'd been an error and I simply had to pay the 15k back. At this point they'd already taken 2 x payments for the loan at £308 per payment - which were paid for by the loan so I couldn't pay it back so I tried to carry on as the money could be used to pay off other creditors. I now know I couldn't afford either of the 2 loan repayments and so every month £616 was going out of my account - being paid for by the loan itself. This quickly ran out and I started having to use credit cards to make the repayments.

At this point I tried to renegotiate the terms as I was paying them back at an interst rate and over a period of their choosing. The trouble was I kept coming up against call centre staff who insisted there was an agreement in place and they had no need to negotiate. Increasingly desperate financially I stopped paying them this 'loan' so we then started going round in circles every day they's ask me to pay the monthly payment I'd respond "I can;'t afford to and you have no agreement, I want to negotiate a payment plan, they would say there is an agreement and I must pay up"

Eventually a maager 'investigated" it and conceded in writing that they'd made an error and paid me by mistake and said I could pay it back minus the interest so I decided to remortgage but could no longer get a re-mortgage because this had adversely affected my credit rating so I asked them to clear my credit rating to allow me to get the money which they refused. I asked them to tack the two loans together - again they said they couldn't but they could end the loans early give me a new one of £25k (at a much higher apr as my credit rating had now deteriorated) and I'd have to pay the difference of about £1200 which I had no means of getting. And besides I was now going to be paying much more in interest and they would not guarantee to expunge my credit rating - all because of their initial mistake.

At this point I started looking into bankrupcy as a last resort, my credit cards were now maxed out (totalling 15k) and I was struggling to pay everything, I had to continually juggle, alternating who I missed payments to each month. This is when, thanks to CAG, I found out about the letters (I think it's an S.A.R - (Subject Access Request) & LBA) which request credit agreements and put the lenders in default. I sent these letters and once they had failed to comply, I stopped paying the 'genuine' loan as they had not provided the Consumer Credit Agreement. They then hounded me for a few months, sent final demands and defaults and then simply stopped harrassing me - until a few weeks ago. I've now got a court summons for the 'genuine loan' and a default for the one they've admitted was a mistake - something they now deny again!

 

I'm glad the court summons is here as this as been weighing heavily on my mind and making me really depressed for the last 18 months, I should have followed through on my LBA but have been too scared to do so.

 

Appologies for the essay but there are so many issues here that I felt I should put down a decent level of detail.

 

Any comments really welcome, appreciated and needed as I don't know how to construct my defence/counter claim.

 

Thanks in advance

[Ruud]

Hi CreditCardMug I'll post up my documents on photo bucket shortly

 

Thanks

[Ruud]

Hi CreditCardMug,

 

I've posted up all relevant docs here:

 

ChopperPort/N Rock - Photobucket - Video and Image Hosting

 

They include:

POC

Default Notices (s)

Final Demand (s)

Admission of Error from NR - some of their facts are wrong

Acknowledgement of verbal request for Agreement

Details of proposed offer

My Copy of Credit Agreement for genuine loan (11)

Claim Form from court

Wallers Letter

 

I grouped correspondance for the applied for loan under (11) and the one in error under (85)

 

Hope this is all useful?

 

Thanks

[Ruud]

For Ref these are the two letters I sent Last year:

 

 

 

 

XXXXXX,

XXXXXX,

XXXXX,

XXXXXXX

 

 

January 03, 2007

Northern Rock Personal Loans

Hepworth House

Claypit Lane,

LEEDS,

LS2 8AE

 

Dear Sir/Madam

 

Re:− Reference Numbers XXXXXXXXXXXXXX85 & XXXXXXXXXXXXXX11

 

Further to letter Ref: RC/5XXXXX85 I am still waiting for a copy of the alleged credit agreement and I would be grateful if you would send me a copy of any credit agreements in relation to the above reference numbers.

 

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement(s) on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

I understand a copy of my credit agreement(s) should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

 

 

 

Mr XXXXXXXX XXXXXX

 

 

and then

 

 

XXXXXXXXXXXXXX,

XXX

XXXXXXXX,

XXXXXXX

 

 

March 28th 2007

Northern Rock Personal Loans

Hepworth House

Claypit Lane,

LEEDS,

LS2 8AE

 

28th March 2007

 

 

Agreement Numbers: XXXXXXXXXXXXXX85 & XXXXXXXXXXXXXX11

 

 

Dear Sir / madam.

 

I wrote to you by recorded delivery on January 3rd 2007 asking for a copy of the credit agreements under S77-79 of the Consumer Credit Act 1974, enclosing a fee of £1. This letter was delivered and signed for on January 8th 2007 as documented by the Royal Mail.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further calendar month, your company commit an offence. These time limits expired on January 23rd 2007 and February 22nd 2007 respectively. I have still not received the documents as required by S77/8 Consumer Credit Act 1974. I am therefore of the opinion that an offence has now been committed.

 

As you are no doubt aware subsection (4) states:

 

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.

 

Therefore as at January 23rd 2007 both of these accounts became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities. As an offence of this nature may have an impact on your ability to hold a credit licence, it is important that you give this letter your immediate and prompt attention.

 

In addition these accounts are no longer enforceable and payments to them have therefore ceased. You cannot take any action to collect payment and this includes telephoning me. Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed. Please note that mere correction or amendment to the entry’s will not be acceptable.

 

Additionally any monies I may have paid to your company should be returned to me forthwith.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

 

I need not remind you that further attempts to discuss the matter with me or to seek payment from myself in this manner would be an act of criminal harassment.

 

Under the Protection from Harassment Act 1997 s 1. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.I will not enter into any telephone discussions on this matter and have been logging all calls made by your company to be used in a court of law if necessary.

 

 

I await your rapid response.

 

 

 

 

 

 

 

 

Mr XXXXXXXXX XXXXXXX

[AndyOrch]

Hi Ruud

 

Default Note is not complient and therefore invalid.

Did you recieve any seperate Terms & conditions with the agreement along with statement of Account? if not that also is not complient and incomplete.

 

 

Regards

 

 

Andy;)

[Ruud]

Hi Andy,

 

I can't work out which the statement of account is but I'm not in possesion of any T&Cs

 

Thanks for taking the time to have a look and it's encoraging to know that the Default Notice is not complient

 

Cheers

[Ruud]

Hi 42Man, I found the CPR 31.14 letter posted by SurfaceAgentX20 and I notice that you have changed the paragraph "You should ensure compliance with your CPR 31 duties" to "Your client should ensure compliance with its CPR 31 duties"

 

Is this important? and if so should I be changing the whole letter to refer to "Your Claimant"

 

I just want to be sure I get it exactly right as I don't know much about this sort of thing and don't know if it matters?

 

Thanks

[Ruud]

Hi Andy,

 

Can you tell me why the DN is not Complient?

 

I think I need to submit my defence tomorrow as I've not received a response to my CPR 31.14 letter yet.

 

Thanks

[AndyOrch]

Hi Rudd

 

The Default Notice only states that you have to rectify the breach in 14 days and does not state a date by so basically 14 days from when ,the date of the DN ? How do you know what day recieved it?

 

Should state to rectify the breach by xxth xxxxx 2008

 

I trust the above explains why

 

Regards

 

Andy

[42man]

Good work Andy....and just to back up what he is saying Ruud -

 

i 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.

[citizenB]

I have just been looking through your documents.

 

1: Default notice dated 8th September. I dont know when you received it, however....

2: The formal demand is dated 22nd September therefore only 14 days were given between date of DN and FD. There should have been 14 clear days for you to remedy any breach on the DN.

3: So at the very least the FD should not have been dated before the 24th September:)

 

You then have a 2nd DN with much the same problem in that it is dated 29th September with the FD being dated just 14 days later 13th October.

 

There also appears to be a Formal Demand dated 9th September. I dont understand how they can issue 2 FDs for one account for 2 different sums one for arrears and one for the whole sum ?

Edited October 29, 2008 by citizenB

[Ruud]

Thanks Andy/42/Citizen,

 

I don't understand how they can do a lot of what they do which is how I've ended up here!

 

Am I right to think that as they have not complied with my CPR 39.14 and my previous requests for the Credit Agreement, I should before I submit a defence, be sending an N244 filled in as follows which I've borrowed from an X20 post:

 

 

In box [3] of the N244 write:

 

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

'On (date), following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

 

The following is the text taken from my wakeywakey post but hopefully will assist with a gist of the sort of thing to say:

 

[The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

 

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

 

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

 

On a separate piece of paper to be attached to your application notice, write this:

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

 

Can someone advise:

1.) is the blue text relevant given I've recieved no response?

2.) What date should be where the RED date is?

3.) shall i attach copies of previous letters asking for the agreement?

 

 

Sorry I know it's another long one but I'm still struggling to grasp how all of this works!

 

Thanks

 

Ruud

[AndyOrch]

Hi Ruud

 

IMHO I would hold on the Application for now.When did you send your CPR request and have they past the response date?

have you confirmed the date your Defence has to be submitted?

i would advise you submit something be it an holding defence or final defence as the only thing you are missing is the agreement at this stage and with regards to what i have said re the DN is good enough to proceed.

You can wait and see what X20 advises but be carefull of your timeframe wouldnt want them to get Summary Judgement in the absence of a defence.

 

Regards

 

Andy

[Ruud]

Hi Andy,

 

I sent my CPR request on the 22nd, they recieved it on the 23rd which means the 7 days are up today (30th). My defence date is 28 days after the summons was issued, I've checked with the Court and it has to be in by November 18th.

 

I'll have aread round though to find a 'holding defence' just to be on the safe side. Thanks

 

Ruud

Edited October 30, 2008 by Ruud
Confirmed Court Date

[Ruud]

Hi all,

 

I've just realised I need to submit my reponse tomorrow as they did reply to my cpr 31.14 request eventually, I've psoted the documents at ChopperPort/N Rock - Photobucket - Video and Image Hosting

under 11-repsonse to 31 14.

 

The agreement they've sent has a signature but is not mine and the T&C's look to be a standard set they've got on file with a handwritten 'August 2005' on them, hole punch marks, the document is not A4 and has nothing at all that links it to the CA.

 

I plan to sumit a defence tomorrow which lists the following points:

 

1. They did not respond to my S78 (1) request for my Credit Agreement and so when the DN was served it was already unenforceable

2. Because of 1. all the correspondance they sent including logged telephone calls is deemed harrassment

3. The DN is not valid as per previous posts (Thanks Andy)

4. The CA is not a true copy of the original

 

I'll therefore request that the claim is struck out.

 

Should I then make a counter claim to have my Credit Record corrected? Should I also make a counter claim for the monies they've taken from me in respect of this account?

 

Any guidance would be really appreciated, I know this is late - I'm awful at leaving things to the last minute, sorry.

 

Thanks

 

Ruud

Edited November 17, 2008 by Ruud
Error in point 1 (Thanks BRW)

[Ruud]

Hi,

 

This is a rough version of the defence I intend to post by special delivery at lunchtime today, I've adapted and added to a standard defence and so I hope it's all relevant and correctly worded.

 

If somone could please comment I'd be really greatful as I'm not confident I've got it right.

 

Thanks

 

Ruud

 

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.
   
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 default notices issued 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 03/January/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 22/October/2008 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 and Default Notice referred to in the particulars of claim. Also any other documents the Claimant seeks to rely on.

 

10.To Date the claimant has not fully complied with my request under the CPR as the documents subsequently supplied are not the documents requested. The default Notice and the written agreement are incomplete/incorrect and as such I suggest they are inadmissable

 

11. 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 documentation the claimant is relying upon to bring this action does not meet 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. I respectfully ask the court to examine a copy of the default notice supplied to the defendent in reponse to the afore mentioned request. The defendant suggests the supplied document does not conform to the prescribed format and as such is invalid.

19.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

 

 

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 documents it intends to rely on pursuant to the Civil Procedure Rules

 

22.Having instigated these proceedings without any legal basis for doing so, having failed to provide a true signed copy of the alleged credit agreement as required under the pre-trial protocols in order to investigate this claim, also having failed to provide a copy of the default notice served in the prescribed format, 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 and submit a counter claim when the claimant provides full disclosure of the requested documents in their correctly prescribed formats.

Edited November 17, 2008 by Ruud

[banker_rhymes_with]

Hello Ruud!

 

This is in relation to your Post #22 above, not Post #23 that is directly above!

 

I'm a little tied up with my own case, but my Thread below may help you, as a lot of what you ask is covered, including how to add a Paragraph or two to request that they fix your Credit Record.

 

BRW v A Particularly Nasty Bank

 

Feel free to borrow anything that is useful.

 

Your point (1) above is possibly odd, i.e. I think you mean they did not respond to your s78(1) Request. A SAR is a Data Protection Act 1998 issue, whereas a s78(1) Request is a Consumer Credit Act 1974 issue. If they failed to respond to the latter whilst the alleged Account was still active/live, then that would indeed constrain them by virtue of s78(6).

 

In that case, they should not have issued a Default Notice whilst they were in default themselves of your s78(1) Request.

 

In turn, demanding Payment when they were in default of your s78(1) Request could indeed be regarded as Harassment, and also in Breach of the Office of Fair Trading Debt Collection Guidelines.

 

Point (3) should be a knock out blow and a battle winner all by itself.

 

I hope this helps, get some Coffee on, and you still have time to crank out a Defence.

 

Cheers,

BRW

Edited November 17, 2008 by banker_rhymes_with
We posted at the same time!

[banker_rhymes_with]

Hello Ruud!

 

Sorry, I typed and posted my last while you were busy Posting your Draft Defence, so you were already ahead of me.

 

I've had a quick look at your Defence, and it looks OK at first sight.

 

You seem to have covered the main issues.

 

If that is what you submit as your Defence, it ought to be good enough.

 

You can bone up on how to argue this on the day, but that should get the main points across.

 

Sorry this is just a flying visit, but I cannot see anything obviously wrong with it. You may get someone else to give it a 2nd look.

 

Good luck.

 

Cheers,

BRW