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Amex taking me to court - any advice - *** WON ***

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Hi, I sent Amex a SAR on 24th July, had part of the information back from them with a letter confirming that the rest of the information would be sent separately, I haven't received this.

 

In the meantime, Brachers have been in touch - I sent them a copy of the SAR letter, they followed up with a "Without Prejudice" letter offering a reduction in the amount owing. As I hadn't heard from Amex with their second part of the SAR, I ignored Brachers. I did receive another letter from them at the end of last week (which to be honest I didn't open - more because I thought it would be another threat and as I haven't had the SAR info through didn't think they would take the next step right now).

 

I came home today to find a summons :eek:

 

I would really appreciate some advice please. I would want to counter claim for the charges I know they have levied against my account - the problem is I don't have all my statements, and haven't received the second part of the SAR, so don't actually know what this totals - what should/could I do?

 

Also, I want to get the case transferred to my local court - I have a three year old and therefore can't go traipsing all over the country. Can I do this, and what do I need to do?

 

And finally, (sorry for the questions), if it goes to court, I counter claim for the charges, the outstanding amount is reduced (would be under £500 at that point) I presumably have the dubious honour of a CCJ. If I pay that CCJ off within 30 days, does that clear my credit record?

 

I would very much appreciate some advice and help on this, and on how to fill in these forms.

 

Thanks for your help.

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Hi, I sent Amex a S.A.R - (Subject Access Request) on 24th July, had part of the information back from them with a letter confirming that the rest of the information would be sent separately, I haven't received this.

 

In the meantime, Brachers have been in touch - I sent them a copy of the SAR letter, they followed up with a "Without Prejudice" letter offering a reduction in the amount owing. As I hadn't heard from Amex with their second part of the SAR, I ignored Brachers. I did receive another letter from them at the end of last week (which to be honest I didn't open - more because I thought it would be another threat and as I haven't had the SAR info through didn't think they would take the next step right now).

 

I came home today to find a summons :eek:

 

I would really appreciate some advice please. I would want to counter claim for the charges I know they have levied against my account - the problem is I don't have all my statements, and haven't received the second part of the SAR, so don't actually know what this totals - what should/could I do?

 

Also, I want to get the case transferred to my local court - I have a three year old and therefore can't go traipsing all over the country. Can I do this, and what do I need to do?

 

And finally, (sorry for the questions), if it goes to court, I counter claim for the charges, the outstanding amount is reduced (would be under £500 at that point) I presumably have the dubious honour of a CCJ. If I pay that CCJ off within 30 days, does that clear my credit record?

 

I would very much appreciate some advice and help on this, and on how to fill in these forms.

 

Thanks for your help.

 

 

I should say that the charges are likely to be around half or slightly more of the overall total that Brachers claim I owe.

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Hello P-N!

 

If you can, could you please outline how you got to this stage?

 

For example, have you run into problems Paying or did you send them a s78(1) Request and stopped Paying when they didn't respond?

 

Or did you send them a SAR and then stopped Paying etc.

 

Just need a quick outline of how things worked out to get to this stage.

 

As always, keep it general, and change any minor details that will hide your identity.

 

Cheers,

BRW

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Hi Banker

Thanks for your speedy post! I actually ran into problems with Amex around 18 months ago - they effectively stopped my card and stopped sending me statements, I continued paying a small amount every month till I got to a point where I had figured I had paid it off, or thereabouts. Money was extremely tight, so stopped paying. I had written to Amex some time before this requesting a confrmation of the outstanding balance, but had no response. I figured that stopping the payments would ensure some kind of response, but nothing came of it. I didn't think too much of it until Brachers got in touch the first time.

 

With everything else going on (don't we all have other things going on), I haven't really paid it too much attention.......

 

I suppose one of the questions I am asking myself is: Is this really the amount outstanding - I have no way of knowing as I am relatively certain (I would need to back through all my bank statements to work out what I paid and when, etc) I had paid most if not all of the outstanding debt.

 

I think my failure was really to push Amex to confirm the details to me.....

 

hindsight is a wonderful thing!!

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Hello P-N!

 

OK, as it's going to Court, I'm less able to advise as I have no direct experience (yet)!

 

However, you now need to use every tool that is available in the run up to Court to get all of the details you need. There are useful measures you can now use to get things fast.

 

But first thing is to call the Court and establish the Date of Service. That should be 2 days after Posting but, do check, as this determines how long you have to get what you need. If you miss any of the Deadlines, the enemy may get an easy Win by Default, and you don't want that, do you?

 

My advice would be to submit just the Acknowledgement of Service (AOS). That must be with the Court within 14 Days from the Date of Service. But get the AOS in, and you then have another 14 Days to get your Defence and any Counter-Claims in.

 

This is still not a lot of time, but time enough if you take positive action straight away to get ready, and see what you can do to find out the information you need.

 

For example, use CPR 18 to get any details that are missing from your S.A.R - (Subject Access Request). Make sure you ask for everything, including a valid Default Notice and proof of Postage of that.

 

If they have included a copy of your Agreement, or not, then there are ways to play that.

 

Search out Defences on CAG written by Paul/PT2357. Then get to work on your own, start early, and get help to refine it.

 

Look at CPR 31.14, and especially the Thread by Surfaceagentx20 here:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

Do a CAG Search for Threads by both of the above in Blue, and find the details I mean.

 

The main things you must get to see ASAP are:

 

(1) The Agreement.

 

(2) The Default Notice.

 

(3) Termination Letter.

 

I'll try to help, but will be busy for the next 2 days, after that will try to help more.

 

Cheers,

BRW

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Dear BRW, thank you so much for your reply, read through the link you sent, and am proposing to send this letter once I have returned the acknowledgement. The summons says service is deemed as being 5 days from the date of the summons which was 21st Oct.

 

I have not CCA'd Amex, only sent an SAR to determine what the charges are that they have levied on the account and therefore claim them back, so how do I go about getting Amex to come back to me on this. I was thinking about writing to them tomorrow morning to advise them that they have failed to comply with the SAR.

 

I am assuming that I can request a change to my local court rather than the one that issued the summons,, so is that something I should do before the AOS, or after? Sorry to ask so many questions.

 

Thanks very much

 

 

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 assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) 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

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Hello P-N!

 

Just a very quick one, as I'm a bit busy on something right now (will be for next 2 days)...

 

Do call the Court to make sure what the Deadline is for the Acknowledgement of Service (AOS). Get that in ASAP anyway, as it's just a tick in the box and then you get +14 Days on top of the +14 Days from Date of Service (+28 Days Total).

 

The Claim should be automatically transferred to your Local Court as soon as you submit your Defence, as you are an individual not a Company. Always check with the Court if in any doubt. So, AOS goes in ASAP to buy you an extra 14 days, then once you file your Defence and any Counter-Claims (unlawful charges? Harassment? anything you can think of?), the Claim should get Transferred.

 

But AOS is key, get that in ASAP.

 

CPR 31.14 is OK, but don't send it as you have it above, as it needs to be edited to suit you. x20 left some bits in that can and should be deleted if not applicable. Read x20's thread again, to understand what you can, and cannot ask for...ask x20 if in any doubt, send a PM (Private Message), or post onto the Thread.

 

Ideally you needed to send Amex a s78(1), but that may not be possible now if they have Defaulted you and Terminated. Must assumed that to be the case now if they are going to Court. Assume the alleged Account is now dead as a door nail, as there is no bringing it back to life once Terminated.

 

Maybe aim for this Monday to get Letters off, and use Friday and the Weekend to bone up and plan the AOS and 31.14 Letters carefully. Always best to get things right than rush...provided you don't blow a Court Deadline that is!

 

Cheers,

BRW

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HI BRW,

 

Thanks for your reply - know you are on something else right now, so it is appreciated. Have spent the evening reading through other posts as well, so am planning to get this as together as I can over the weekend, and will definitely be doing the AOS tomorrow to arrive by Monday, will also phone the court to confirm all the dates and transfer to local court.

 

Thanks again, it's very much appreciated.

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I have finally received my SAR details from Amex - charges over the last few years amount to £400+, I need to file by defence by Friday - almost no time to do it, (due date is Sunday, but guess I need to get it there by Friday).

 

Is there anyone who can point me in the right direction to what I need to say.

 

They want £800 and I want to counter claim for the £400+. Presumably I would get a CCJ for the remaining £300?

 

Although this is such short notice, I would be very grateful for any help.

 

Thanks

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Hello PN!

 

Do get that CPR 31.14 Letter off ASAP, because this will probably go Small Claims Track. Once a Track is allocated, you can't use this.

 

But get it in now, while the case is trackless, and you can use it to request a Physical Inspection of the alleged Agreement.

 

Did the SAR produce a Default Notice, and how did that look if so?

 

Best to get the Defence in on Friday if you can, as you could risk having them win by Default if you don't get your Defence in on time. Maybe give the Court a ring to see what they say? They may, off the record, let you get it in first thing Monday if Sunday is the Deadline.

 

I'm off now, but will pick this up Tomorrow.

 

Cheers,

BRW

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Hello PN!

 

Do get that CPR 31.14 Letter off ASAP, because this will probably go Small Claims Track. Once a Track is allocated, you can't use this.

 

But get it in now, while the case is trackless, and you can use it to request a Physical Inspection of the alleged Agreement.

 

Did the S.A.R - (Subject Access Request) produce a Default Notice, and how did that look if so?

 

Best to get the Defence in on Friday if you can, as you could risk having them win by Default if you don't get your Defence in on time. Maybe give the Court a ring to see what they say? They may, off the record, let you get it in first thing Monday if Sunday is the Deadline.

 

I'm off now, but will pick this up Tomorrow.

 

Cheers,

BRW

 

Hi BRW

 

Thanks for your mail. I have until Monday to get the defence/counter claim in - my little boy is very ill, so spent all of yesterday, last night and this morning looking after him.

 

In amongst washing 10 million things, I have gone through all my AMEX SAR Stuff - there is no default notice at all, they appear to have closed my account some time ago, and still charged me interest, have recorded receipts of all monthly payments since they closed my account.

 

I totalled all the penality costs upto 6 years ago, and it totals £445.00, plus £140 statutory interest, they are claiming £597, including statutory int, file referral fee, and then of course court and solictors fees.

 

I am not sure I can argue the Agreement/application, I had the card, I used it, and I want the penalty fees refunded.

 

If you have any thoughts on this, I'd be grateful.

 

Thanks

PN

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If they didn't issue a valid DN then frankly they are stuffed.

 

Can you post up details of the Particulars of claim minus personal details


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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If they didn't issue a valid DN then frankly they are stuffed.

 

Can you post up details of the Particulars of claim minus personal details

 

Hi Josie8, not sure if I have this correct, but the details from their Particulars of Claim on the court forms:

 

Money due for Creditcard services supplied (xxxxxx my account number) to and at the Defendant's request as detailed in monthly statements rendered culminating xx June 2008

 

Sum due at xx June 2008

 

xxx

Add file referral charge xx.xx

Less credit. 0.00

 

Statutory Interest from

xx June 2008 to date at 8% per annum

xxx x 0.xx

per day currently xx.xx

 

Add subsequent debits 0.00

 

The Claimant claims £xxx

 

Plus continuing Statutory Interest at 0.xxp per day until Judgement or sooner

payment pursuant to section 69 of the County

Edited by Pandora_nini
removed personal details

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well no mention of a default notice there.

 

Send 31.14 request for copy of cca as mentioned.

 

Send letter to Amex asking for confirmation they have provided all documentation they hold on you or alternatively provide said documentation within 7 days or you put them on notice you will issue a s.10 DPA claim

 

If you pay a ccj within 30 days then it is cleared from you credit history. You will get a certificate of satisfaction


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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well no mention of a default notice there.

 

Send 31.14 request for copy of cca as mentioned.

 

Send letter to Amex asking for confirmation they have provided all documentation they hold on you or alternatively provide said documentation within 7 days or you put them on notice you will issue a s.10 Data Protection Act claim

 

If you pay a ccj within 30 days then it is cleared from you credit history. You will get a certificate of satisfaction

 

Thanks Josie8

 

I have sent an SAR to Amex, one of the reasons I am so up against getting the defence in - only received some of it last week. There was no copy of a default notice in the pack at all! I am going to include this in my defence as well as the penalty charges.

 

Thanks

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Hello PN!

 

Josie8 is on the ball, so do run with the CPR 31.14 for all it is worth, and do so ASAP. That area of the CPR cannot be used once this goes Small Claims, but can be used if you get the Request in ahead of that, as then the Request is running and has a life of its own.

 

If you have not already done so, add a Request to see the Default Notice too in your CPR 31.14 Request, especially if they have used the word Default at all. But even if they have not mentioned either an Agreement or Default Notice, they should've done! CPR 31.14 is geared towards Documents mentioned in their Particulars of Claim, but Surfaceagentx20 has some thoughts on that in the excellent Thread below:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

The following Thread could be of interest, as another CAGGER is in the same position, and is also using CPR 31.14 to force them to produce the Agreement upon which their Claim is based:

 

Amex the 2nd bite of my cherry

 

Amex are deliberately using the vague description Credit Card Services to try and duck the issue of this being a Regulated Credit Card Agreement under the Consumer Credit Act 1974.

 

It is important that in your Defence you make it clear that the Original Agreement must be produced, as must clear evidence that a valid and compliant Default Notice was issued, before they Terminated/Closed your alleged Account.

 

At the moment, they are missing two of the key Documents they will need to carry the day for them.

 

You should also add a Counter-Claim at the end of your Defence to go for Repayment of the Unlawful Charges. Make sure you ask for both s69 County Court Interest of 8%, plus Contractual Interest at whatever was the last highest Rate they charged you on the Account.

 

The point is that whilst money was exchanged in both directions, that does not in itself confirm that there was an Agreement. Amex will try to suggest that this is evidence of an Agreement, but it is not. It is simply evidence that you thought there was an Agreement, and never thought to question the validity of this until you found out about the Consumer Credit Act 1974.

 

Only recently did you become aware that they must follow certain requirements to get the Agreement correct. Likewise, only recently have you discovered that they had to follow explicit steps to extract themselves from the alleged Agreement in the event of a default by you that was in breach of any Terms that may apply.

 

The Agreement is key, as that sets the pace for everything else. No Agreement, then there is no evidence that a Debt ever existed.

 

The Default Notice is of equal importance, because they had to issue a valid Default Notice to extract themselves from the Agreement. They had to comply with s87/88. There can be no ifs and no buts.

 

If they cannot produce a valid and compliant Default Notice, then it will be hard for them to show what sum was requested that caused them to Default you and then Terminate the Account. If you see my point, where did they get the £492.00 they say is owed?

 

The Statements, if available, only show the figures, they don't prove that you owed anything.

 

I think your Defence needs to stress that their Claim is not sufficiently particularised and, until you see the key Documents upon which this Claim depends, you cannot present a proper Defence.

 

Use CPR 31.14 to ram that point home, because it is vital that you make sure the Court is aware that the Claimant is embarking on this without the necessary evidence to support their action.

 

Lastly, have a read of the following Thread, as Surfaceagentx20 has some more useful thoughts on the validity of Default Notices in terms of the accuracy of any Sums requested with regard to Unlawful Charges forming a part of this Sum:

 

Help ... Been to Court ... Big Credit Card Problem

 

The key information starts from Post #44 in the above Thread.

 

I hope this helps.

 

Cheers,

BRW

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Hi BRW, thank you so much for your very informative, straight forward and clear post - it really does help. I really appreciate the time you've taken to help me.

:)

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Dear All, do you think that this is correct - I took Josie8's advice on Amex - 2nd bite of the cherry post re removing "struck out / summary judgement", and also changed the wording a bit on Creditcard services below, also as per Amex - 2nd bite of the cherry post....

Dear Sirs

Re: xxxx v xxxx – Case No xxxxx

CPR 31.14 Request

On xx October 2008 I received the Claim Form in this case issued by you out of the xxx 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 documents mentioned in your Particulars of Claim: by fact that you are claiming for ‘Credit Card Services’ which are based upon agreements regulated by Consumer Law.

 

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

 

3. The termination notice

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your 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 look forward to hearing from you.

 

Yours faithfully

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In writing up my defence and going through the items sent through from Amex via the SAR, I looked at the Application/Agreement sent through - I am unable to scan this in at the moment, but the details look like this: (all copy taken from the application form is in italics)

 

1) Titled at the above P(overstickered barcode)pplication (I can only assume this is says Postal Application under the sticker?

 

2) Under the personal details section, and the "Transfer your balance...." section there is a section with lots of small print - this effectively says:

Personal Information - before signing the application it is important that you read the paragraphs set out overleaf which set out how we collect and use information about you for the purpose of providing the Card services and other appropriate products and services. By signing this application you agree that for the purpose of processing it AMEX may:

a. carry out Credit checks .....

b. check your details.....

c. check your identity .....

d. use various statistical methods......

e. contact your employers....

 

At which point there is a big sticker stuck over all of this small print saying

 

"Credit Agreement Regulated by the Consumer Credit Act 1974

I confirm that the information given here is true and correct.....etc, etc"

 

Below this is the Your Signature panel (Please sign below)

Your right to cancel

Signature box with my signature and date on it

 

Below this is signature box for Amex

Authorised by Amex BLANK

Nowhere on this sheet does it state the terms of agreement, and the t&c's supplied with this is copy are the updated ones (ie the Penalty charge is £8.00, not the £15.00, then £20.00, then £25.00 charges actually levied on my account).

In everyone's view, is this an application form, or a properly executed agreement?

Sorry I can't scan it in at the moment, if I need to include more information or detail on this, then please let me know?

Thanks

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My proposed defence: Anything I am not sure of I have either made bold, left in red or questionned in blue. If anyone has any thoughts on this for me, I would be very grateful.

 

Thanks to BRW for your help in this!

 

 

 

In the xxxx COUNTY COURT

Claim number xxxxx

 

Between:

 

xxxxx

Claimant

 

and

 

xxxx

Defendant

 

D E F E N C E

 

1. I, xxxxx, am the Defendant in this action and make the following statement as my Defence to the above Claim made by xxxxx.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present because, amongst other things:

 

4. The Claimant’s 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 Court’s 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 a written Agreement nor the method by which the Claimant calculated any outstanding sums due, nor any other matters necessary to substantiate the Claimant's claim.

 

(b) A copy of the original written and properly executed Regulated Credit Agreement that appears to form the basis upon which these proceedings have been brought, does not appear to have been served attached to the claim form.

 

© 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.

 

(d) A copy of the required valid Default Notice does not appear to have been served attached to the claim form.

 

(e) Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

 

 

The relevant Act of Parliament in this Case

 

5. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

6. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

 

7. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

 

 

The Request for Disclosure

 

8. Further to the above, I have tried via Data Subject Access Request to obtain all the information that I feel I will need to present a well crafted Defence. I have requested from the Claimant disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case. 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.

 

9. To Date I have only received a partial response via Data Subject Access Request. As a result, it has proved difficult to compose this Defence without disclosure of the information requested, especially given that I am a Litigant in Person.

 

 

Document Retention and the Claimant’s failures

 

10. The Claimant would be aware of the fact that they would need to be able to produce a copy of the original Agreement should they ever need to take legal action to enforce the Agreement. The Claimant would also need to be able to produce a true copy of the properly executed Regulated Agreement upon request pursuant to Section 78 (1) Consumer Credit Act 1974. It therefore stands to reason that the Claimant must surely hold such document, and yet has either chosen not to disclose it, or has lost this document, or never had it in the first place.

 

11. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b)). As a Running Credit Agreement remains active until the Agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the Agreement/application) would be "live" until the account is paid, or terminated. Thus, the full file should be retained for at least six years after that.

 

12. This interpretation fits in with Inland Revenue legislation that requires prime documents are to be retained for a period of six years, after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5) (a) and (5) (b)."

 

13. Finally, key documents and Application Forms must also be kept until 5 years after that business relationship has ended, if the Claimant is to comply with the requirements of The Money Laundering Regulations 1993, 2003 and 2007.

 

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

14. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

15. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

16. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

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:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

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

 

17. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

18. 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 Schedule 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 s61 that all the terms should be in a single document, and backed up by the provisions of s127(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) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

20. Notwithstanding point 64, The Agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

 

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

 

22. 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 lender 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.

 

23. 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…

 

24. 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…"

 

25. The message 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 Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

26. Therefore, the Claimant must provide an original copy of the Agreement compliant with the regulations as laid out in points 59 to 69 of this Defence to have any right of enforcement.

 

The Court’s Power of Enforcement

 

27. The Court’s powers of enforcement where Agreements are improperly executed by way of Section 65 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. Section 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).

 

28. Furthermore 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.

 

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

 

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

 

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

 

30. These restrictions on enforcement of a Regulated Agreement cannot be sidestepped... 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.

 

30. The judgment of Lord Nicholls of Birkenhead clearly sets out that without a Credit Agreement the Claimant's case cannot succeed.

 

31. I therefore 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 Court’s powers of enforcement are surely limited in these circumstances.

 

32. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32.

 

33. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"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.

 

34. The Defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss of the original, or destruction of the original Credit Agreement was central to the case and the Defendant is under the belief that the outcome of the case was that where the original Agreement could not be produced the claim could not succeed and that the appeal was successful.

 

35. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3, which states:

 

7.3 Where a claim is based upon a written Agreement:

 

(1) 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

 

36. Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

37. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

38. It is neither admitted nor 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.

 

39. Notwithstanding point 38, 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).

 

40. The 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 an 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.

 

41. It is submitted that the above Default Notice served under (I am unaware of ANY default notice being served, so should I include this paragraph?) s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

42. I note that the Claimant’s Particulars of Claim fail to even acknowledge service of a Default Notice as required by section 87(1) of the Consumer Credit Act 1974 before the Claimant can even consider terminating the Agreement or demanding early repayment in full.

43. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

44. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

45. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

46. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

47. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

48. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

49. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges (that are now the subject of a Counter-Claim outlined below), plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

50. For the avoidance of any doubt, in the event of an alleged breach by the Debtor, Clause 10 mentioned in 2(b) of the Claimant’s Particulars of Claim has to be completely disregarded. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

51. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 18/06/2008. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Conclusion

 

52. The Claimant's case should not succeed as matters stand. It is averred that the Claimant and its representatives have acted unreasonably when dealing with this Dispute.

53. In view of matters pleaded, I respectfully request the Court give consideration to striking out the Claimant’s case pursuant to CPR part 3.4.

 

54. If the Court considers it inappropriate to use its case management powers, it is requested that the Court order the Claimant to produce all the Original documents mentioned in my Defence before the Court. Without production of all the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

55. The Defendant requires that the Claimant provide the requested information and proofs and authenticities. The Defendant requests that the Court order that the Claimant supply the information requested.

 

56. I respectfully ask the permission of the Court to amend this Defence when the Claimant provides full disclosure of the requested documents.

 

 

 

Statement of Truth

 

I xxxx, believe the above Defence Statement to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

 

C O U N T E R – C L A I M

 

 

Refund of Unlawful Penalty Charges

 

57. The Defendant would like to seek recovery of the Unlawful Charges that the Claimant has levied onto the above Account for the Defendant’s alleged failure to make the minimum payment on the due date and or for exceeding the credit limit. These Unlawful Charges total £xxx and are outlined in the enclosed list entitled American Express Services Europe Limited Penalty Charges (xxx).

 

58. These default charges were applied in accordance with the standard terms of The Agreement which were:

 

(a) A penalty payable on breach of contract and thus unenforceable: and or

 

(b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (The Regulations) and therefore not binding on the Claimant.

 

59. The Defendant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

 

The Charges

 

60. The standard Terms of the Agreement in substance provided as follows:

 

(a) The Claimant would provide the Defendant with the Card. The Defendant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (The Limit) set by the Claimant. The Claimant could unilaterally change the Limit by giving the Defendant notice in writing.

 

(b) The Claimant was entitled to charge interest on the purchases and cash advances at the published rate.

 

© The Defendant was to pay the minimum payment of 2.5% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

 

(d) In addition the Claimant was entitled to charge default fees (The Charges) where the Defendant exceeded the Limit, did not pay on the due date, had a credit cheque returned or had a payment returned. The Charges are currently £8.00. Prior to 2006 the Charges varied and were as high as £25.

 

 

The Penalty

 

61. The Charges were payable on breach of contract by the Defendant.

 

62. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Claimant in relation to the Defendant’s transgressions.

 

63. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

64. At all material times the Defendant was a consumer within the Regulations.

 

65. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

66. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2) The Charges were a penalty for breach of contract.

 

(3) The Charges exceeded the costs which the Claimant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

67. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

68. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

69. The Claimant wrongly applied Charges to the Account totalling some £445.00 between xx/xx/xxxx and xx/xx/xxxx, as outlined in the attached xxxx Penalty Charges (xxx), and Key extracts from the Claimants Terms and Conditions from xxxx can be viewed within AMEX Schedule One (xxx).

 

128. The Claimant wrongly reported the Account status to third-party data controllers including, but not limited to: Experian, Equifax and Callcredit.

 

129. The Defendant wishes to claim Contractual Interest in restitution, at the final rate charged on my Account, namely xx pcm (xx% annual) as shown on the last Statement dated xx:

 

Unlawful Charges £xxx

Interest xx% £xxx

 

Total xx% Claim £xxx on 24/10/2008

 

Daily Rate £xx To be added until Claim Settled

 

130. In addition, the Defendant wishes to Claim Interest under Section 69 of the County Courts Act 1984 at the rate of 8% per annum:

 

Unlawful Charges £xxx

Interest 8.00% £xx

 

Total 8% Claim £xx on 24/10/2008

 

Daily Rate £xx To be added until Claim Settled

 

Data Protection Act 1998

 

145. Additionally, the Defendant requests an order from the Court under Section 14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this Agreement, that may cause prejudice or further damage, from the Claimant’s internal records and order the Claimant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies.

 

146. Section 14(1) of the Data Protection Act 1998 is reproduced below:

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

Statement of Truth

 

I xxxx, believe the above Counter-Claim Statements to be true and factual

 

 

Signed: _________________________ _______

In the xxxx COUNTY COURT

Claim number xxxxx

 

Between:

 

xxxxx

Claimant

 

and

 

xxxx

Defendant

 

D E F E N C E

 

1. I, xxxxx, am the Defendant in this action and make the following statement as my Defence to the above Claim made by xxxxx.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present because, amongst other things:

 

4. The Claimant’s 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 Court’s 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 a written Agreement nor the method by which the Claimant calculated any outstanding sums due, nor any other matters necessary to substantiate the Claimant's claim.

 

(b) A copy of the original written and properly executed Regulated Credit Agreement that appears to form the basis upon which these proceedings have been brought, does not appear to have been served attached to the claim form.

 

© 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.

 

(d) A copy of the required valid Default Notice does not appear to have been served attached to the claim form.

 

(e) Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

 

 

The relevant Act of Parliament in this Case

 

5. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

6. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

 

7. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

 

 

The Request for Disclosure

 

8. Further to the above, I have tried via Data Subject Access Request to obtain all the information that I feel I will need to present a well crafted Defence. I have requested from the Claimant disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case. 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.

 

9. To Date I have only received a partial response via Data Subject Access Request. As a result, it has proved difficult to compose this Defence without disclosure of the information requested, especially given that I am a Litigant in Person.

 

 

Document Retention and the Claimant’s failures

 

10. The Claimant would be aware of the fact that they would need to be able to produce a copy of the original Agreement should they ever need to take legal action to enforce the Agreement. The Claimant would also need to be able to produce a true copy of the properly executed Regulated Agreement upon request pursuant to Section 78 (1) Consumer Credit Act 1974. It therefore stands to reason that the Claimant must surely hold such document, and yet has either chosen not to disclose it, or has lost this document, or never had it in the first place.

 

11. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b)). As a Running Credit Agreement remains active until the Agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the Agreement/application) would be "live" until the account is paid, or terminated. Thus, the full file should be retained for at least six years after that.

 

12. This interpretation fits in with Inland Revenue legislation that requires prime documents are to be retained for a period of six years, after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5) (a) and (5) (b)."

 

13. Finally, key documents and Application Forms must also be kept until 5 years after that business relationship has ended, if the Claimant is to comply with the requirements of The Money Laundering Regulations 1993, 2003 and 2007.

 

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

14. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

15. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

16. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

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:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

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

 

17. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

18. 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 Schedule 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 s61 that all the terms should be in a single document, and backed up by the provisions of s127(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) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

20. Notwithstanding point 64, The Agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

 

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

 

22. 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 lender 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.

 

23. 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…

 

24. 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…"

 

25. The message 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 Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

26. Therefore, the Claimant must provide an original copy of the Agreement compliant with the regulations as laid out in points 59 to 69 of this Defence to have any right of enforcement.

 

The Court’s Power of Enforcement

 

27. The Court’s powers of enforcement where Agreements are improperly executed by way of Section 65 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. Section 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).

 

28. Furthermore 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.

 

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

 

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

 

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

 

30. These restrictions on enforcement of a Regulated Agreement cannot be sidestepped... 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.

 

30. The judgment of Lord Nicholls of Birkenhead clearly sets out that without a Credit Agreement the Claimant's case cannot succeed.

 

31. I therefore 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 Court’s powers of enforcement are surely limited in these circumstances.

 

32. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32.

 

33. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"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.

 

34. The Defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss of the original, or destruction of the original Credit Agreement was central to the case and the Defendant is under the belief that the outcome of the case was that where the original Agreement could not be produced the claim could not succeed and that the appeal was successful.

 

35. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3, which states:

 

7.3 Where a claim is based upon a written Agreement:

 

(1) 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

 

36. Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

37. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

38. It is neither admitted nor 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.

 

39. Notwithstanding point 38, 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).

 

40. The 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 an 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.

 

41. It is submitted that the above Default Notice served under (I am unaware of ANY default notice being served, so should I include this paragraph?) s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

42. I note that the Claimant’s Particulars of Claim fail to even acknowledge service of a Default Notice as required by section 87(1) of the Consumer Credit Act 1974 before the Claimant can even consider terminating the Agreement or demanding early repayment in full.

43. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

44. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

45. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

46. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

47. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

48. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

49. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges (that are now the subject of a Counter-Claim outlined below), plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

50. For the avoidance of any doubt, in the event of an alleged breach by the Debtor, Clause 10 mentioned in 2(b) of the Claimant’s Particulars of Claim has to be completely disregarded. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

51. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 18/06/2008. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Conclusion

 

52. The Claimant's case should not succeed as matters stand. It is averred that the Claimant and its representatives have acted unreasonably when dealing with this Dispute.

53. In view of matters pleaded, I respectfully request the Court give consideration to striking out the Claimant’s case pursuant to CPR part 3.4.

 

54. If the Court considers it inappropriate to use its case management powers, it is requested that the Court order the Claimant to produce all the Original documents mentioned in my Defence before the Court. Without production of all the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

55. The Defendant requires that the Claimant provide the requested information and proofs and authenticities. The Defendant requests that the Court order that the Claimant supply the information requested.

 

56. I respectfully ask the permission of the Court to amend this Defence when the Claimant provides full disclosure of the requested documents.

 

 

 

Statement of Truth

 

I xxxx, believe the above Defence Statement to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

 

C O U N T E R – C L A I M

 

 

Refund of Unlawful Penalty Charges

 

57. The Defendant would like to seek recovery of the Unlawful Charges that the Claimant has levied onto the above Account for the Defendant’s alleged failure to make the minimum payment on the due date and or for exceeding the credit limit. These Unlawful Charges total £xxx and are outlined in the enclosed list entitled American Express Services Europe Limited Penalty Charges (xxx).

 

58. These default charges were applied in accordance with the standard terms of The Agreement which were:

 

(a) A penalty payable on breach of contract and thus unenforceable: and or

 

(b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (The Regulations) and therefore not binding on the Claimant.

 

59. The Defendant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

 

The Charges

 

60. The standard Terms of the Agreement in substance provided as follows:

 

(a) The Claimant would provide the Defendant with the Card. The Defendant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (The Limit) set by the Claimant. The Claimant could unilaterally change the Limit by giving the Defendant notice in writing.

 

(b) The Claimant was entitled to charge interest on the purchases and cash advances at the published rate.

 

© The Defendant was to pay the minimum payment of 2.5% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

 

(d) In addition the Claimant was entitled to charge default fees (The Charges) where the Defendant exceeded the Limit, did not pay on the due date, had a credit cheque returned or had a payment returned. The Charges are currently £8.00. Prior to 2006 the Charges varied and were as high as £25.

 

 

The Penalty

 

61. The Charges were payable on breach of contract by the Defendant.

 

62. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Claimant in relation to the Defendant’s transgressions.

 

63. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

64. At all material times the Defendant was a consumer within the Regulations.

 

65. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

66. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2) The Charges were a penalty for breach of contract.

 

(3) The Charges exceeded the costs which the Claimant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

67. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

68. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

69. The Claimant wrongly applied Charges to the Account totalling some £445.00 between xx/xx/xxxx and xx/xx/xxxx, as outlined in the attached xxxx Penalty Charges (xxx), and Key extracts from the Claimants Terms and Conditions from xxxx can be viewed within AMEX Schedule One (xxx).

 

128. The Claimant wrongly reported the Account status to third-party data controllers including, but not limited to: Experian, Equifax and Callcredit.

 

129. The Defendant wishes to claim Contractual Interest in restitution, at the final rate charged on my Account, namely xx pcm (xx% annual) as shown on the last Statement dated xx:

 

Unlawful Charges £xxx

Interest xx% £xxx

 

Total xx% Claim £xxx on 24/10/2008

 

Daily Rate £xx To be added until Claim Settled

 

130. In addition, the Defendant wishes to Claim Interest under Section 69 of the County Courts Act 1984 at the rate of 8% per annum:

 

Unlawful Charges £xxx

Interest 8.00% £xx

 

Total 8% Claim £xx on 24/10/2008

 

Daily Rate £xx To be added until Claim Settled

 

Data Protection Act 1998

 

145. Additionally, the Defendant requests an order from the Court under Section 14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this Agreement, that may cause prejudice or further damage, from the Claimant’s internal records and order the Claimant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies.

 

146. Section 14(1) of the Data Protection Act 1998 is reproduced below:

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

Statement of Truth

 

I xxxx, believe the above Counter-Claim Statements to be true and factual

 

 

Signed: _________________________ _______

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bump.... is anyone around who could take a quick (ok, maybe not so quick) read of my defence - I am worried I might have left something out or got it completely wrong!

 

Thanks

:smile:

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Well, I got my defence and CPR 31.14 letter off - The court were more than happy for me to fax it in today as the defence deadline was yesterday (Sunday). Let's see what happens....

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Hello PN!

 

Well, I got my defence and CPR 31.14 letter off - The court were more than happy for me to fax it in today as the defence deadline was yesterday (Sunday). Let's see what happens....

 

Sorry for delay responding.

 

Defence looks OK, minor issue with Paragraph numbering (see paragraph 26) and also towards the end going out of step (from Paragraph 69, it jumps to 128).

 

Plus Paragraph 51 may have the wrong date for Termination?

 

Might be an idea to go through the Defence and correct all of these issues, at least so that you have a corrected Copy.

 

Not sure if or how you can update the Court, but in Paragraph 56 you have asked permission to Amend the Defence, so that may be good.

 

The main issues have come across, so the Paragraph numbering and odd date mistake are issues you just need to prepare for, and fix if you can if allowed to present an Amended Defence.

 

Cheers,

BRW

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Hi,

I have read this case with interest as I have a situation whereby the Claimant has missed the deadline by 7 days in getting his claim details in to court & I am therefore too late to challenge any of the details within his case for my defence. His case and the post mark show that he has missed the deadline by 7 days. Will the court automatically dismiss the claimants case or will the claimant appeal with an excuse as to why his claim was 7 days past the deadline & could the court allow the case to continue ?

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Hello Spanglesooty!

 

It may be better if you start a new Thread of your own, as then you should get dedicated help.

 

Otherwise, you could get lost in this Thread and also could divert help away from Pandora Nini.

 

If you do, just edit your above Post to add the Link to your Thread, and people can then hop out to it from here.

 

Cheers,

BRW

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