Please Help - CC Summons Arrow/Copes

[AndyOrch]

Hi freddy no problem

 

I will help you draft a defence early next week got a lot on at the moment

 

Regards

 

Andy;)

[FreddyBoy1957]

Hi freddy no problem

 

I will help you draft a defence early next week got a lot on at the moment

 

Regards

 

Andy;)

 

Thanks very very much, Andy.

I'll keep an eye open for it.

[FreddyBoy1957]

I'm getting extremely worried now, as I have to send in my defence tomorrow (deadline is Friday 28/11/2008).

 

Andy suggested I submit a holding defence, but I'm not really sure what that is. I've found a couple of examples on this excellent site, and used them to draft the following.

 

Would some kind person please cast an eye over it for me to check it's alright. Please, please - many thanks :)

 

 

In the Northampton County Court

Claim number XXXXXXX

 

 

Between

 

Arrow Global LLC - Claimant

 

 

 

and

 

 

 

XXXXXXX – Defendant

 

 

 

Defence

1) I am XXXXXXX, of XXXXXXX, and I am the defendant in this matter. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2) The 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 the account referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form as laid out in Practice Direction 16 paragraph 7.3.

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

 

The Credit Agreement

3) On the 1/11/2008 I wrote to the claimant’s solicitors requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974 (“CCA”). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

4) A copy of the letter mentioned in (5) above (Evidence1 - Defendant - 8XT84227) is attached for the court’s information, together with copies of proof of posting (Evidence3 - Defendant - 8XT84227) and proof of delivery (Evidence4 - Defendant - 8XT84227).

 

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

s78(6) If the creditor under an agreement fails to comply with subsection (1) :-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

6) It is drawn to the court’s attention that the claimant has failed to comply with the request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action, by way of s78 (4) of the CCA, to enforce this agreement while their non compliance continues.

 

Enforcement of the Agreement

7) For a credit agreement to be enforceable it must contain all of the prescribed terms as laid out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

8) The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms required by the CCA then it is not compliant with section 60(1) CCA and therefore not enforceable by s127 (3). The court’s 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

 

9) With regards to the Authority cited in point 8, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

Failure to disclose documents relied upon in the Particulars of Claim

10) Further to the case, on 1/11/2008 I requested the disclosure of information from the claimant’s solicitors which is vital to my defence in this case pursuant to Civil Procedure Rules 31.14. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim, any default or termination notices, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

11) A copy of the letter mentioned in (10) above (Evidence2 - Defendant - 8XT84227) is attached for the court’s information, together with copies of proof of posting (Evidence3 - Defendant - 8XT84227) and proof of delivery (Evidence5 - Defendant - 8XT84227).

 

12) To date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

13) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.

 

 

Default Notice

14) In my request for disclosure under CPR Part 31.14 I requested that the claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.

 

15) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87 (1) CCA was ever received. I put the claimant to strict proof that said document in the prescribed format was delivered to me.

 

16) Without prejudice to the above, I put the claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

17) 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 s87(1) CCA, which states:-

S87(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

 

18) I note the opening part of section 88(1) CCA, which states:-

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

 

19) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended; in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87 (1) CCA.

 

20) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

 

21) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 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 comments of Kennedy LJ:

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”

 

22) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

Conclusion

23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

 

24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon. Nor can I reasonably consider what case I have to answer.

 

25) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

26) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 10 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

27) In addition it is drawn to the court’s attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect: since the alleged agreement is believed to have commenced prior to 2004 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

Statement of Truth

 

I, believe the above statement to be true and factual

 

 

Signed

 

 

 

 

Name

 

 

 

Date

[42man]

Looks good to me, good work Freddy.. worthwhile getting a second opinion though !!

[FreddyBoy1957]

Looks good to me, good work Freddy.. worthwhile getting a second opinion though !!

 

Thank you so much .

 

Hopefully Andyorch will log on today and have a look (I know he's busy) but I'd welcome opinions from anybody else as well

[FreddyBoy1957]

bumping........any comments please :)

[AndyOrch]

Hi Freddy better late than never.

 

I would advocate submitting the following this can be input on line vis a vis MCOL using your password on the summons.Copy and paste and submit print off your reciept as proof and sit back.

 

 

A defence should deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

 

Defence

 

 

I Freddy make this statement as my defence to the claim brought by Arrow

 

1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR

 

2.No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

3.Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit

 

4.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

 

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

 

Yours Freddy

Send Rec Del and retain proof dont sign print

 

 

I tust the above is ok for you

 

Regards

 

Andy;)

Edited November 25, 2008 by Andyorch

[FreddyBoy1957]

Hi Freddy better late than never.

 

I would advocate submitting the following this can be input on line vis a vis MCOL using your password on the summons.Copy and paste and submit print off your reciept as proof and sit back.

 

 

A defence should deal with the claimants pleading and not be complicated and long in these matters. It should not contain references to cases etc. Do not forget you may have to argue that which is contained in your defence and so you need to understand that to which you are endorsing a statement of truth. Until the claimant pleads in an appropriate manner, you should not reveal all your 'cards'. I suggest a defence as follows:-

 

 

Defence

 

 

I Freddy make this statement as my defence to the claim brought by Arrow

 

1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR

 

2.No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

3.Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit

 

4.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

 

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

 

Yours Freddy

Send Rec Del and retain proof dont sign print

 

 

Itust the above is ok for you

 

Regards

 

Andy;)

 

Brilliant. :D I shall do as you suggest. Many thanks, Andy - I'll keep you posted :)

[FreddyBoy1957]

Hi Andy

 

Have submitted the defence online and sent the letter to the sols .

 

Many thanks for your advice on this, which I've followed to the letter.

 

What happens now, what should I be expecting through the post??

 

Cheers - Freddyboy

[AndyOrch]

Morning Freddy

 

The process from here on is that the court will forward a copy of your defence to the Claimant for their perusal.They then have 28 days in which to respond if they do you will recieve an N150 AQ (allocation Questionair) the completion of this form transfers the case to your local CC.If they fail to respond (which we hope is the case) then the claim will be stayed,until such time the claimant wishes to revive said claim.They have to pay a to do this and also the longer it is left stayed the more valid reason they will need to request this.This can also provide valuable breathing space in your predicament and also put the claimants case to question.

 

Regards

 

Andy

[FreddyBoy1957]

Just an update to this.

I phoned the court this morning who told me that there has been no response to my holding defence and that the claim has automatically been stayed.:D

 

Many thanks to all who have contributed to this thread, but especially to AndyOrch without whose advice and help I would undoubatably be saddled with a CCJ right now.

 

I have a couple of questions now:

 

1) Will the claim be stayed forever or does it disappear after a certain time?

 

2) As Copes/Arrow have not responded to my CAA request is it now worth sending them the letter to state that the account is in dispute (to prevent them selling the alleged debt on)?

 

3) Are they allowed to take any action (ie selling the debt on, making a Stat Demand, etc) whilst the claim is stayed?

 

Very many thanks - Freddyboy:)

[AndyOrch]

Hi Freddy i trust you and yours had a good xmas.

 

Thankyou for your kind coments.

 

With regards to your recent post a claim can be stayed indefinitely until the Claimants pays the fee to revive said claim and with good reason to the Court for their delay in response to your defence.Should this continue you have the option to strike out.

 

Regarding your second/third point as the issue is now a matter of litigation the Claimant should not attempt this action therefore I would not advocate this course of action at this time.

 

 

Regards

 

Andy;)

[StayingCalm]

Hi FreddyBoy

 

Have read your thread with interest.

 

Is this still stayed?

 

Have you heard from Copes/Arrow again?

 

Would be interested in any further developments.

 

Regards

SC

[NailPost]

When you wrote to Copes was the address in Devon or Hertfordshire. I have had an issue with Arrow/Copes and all the correspondence, in both firms name, came from St Albans. But Copes are actually based in Devon. Its a one-man show in deepest Tarka country and one letter there and the threat of reporting him to the Solicitors Regulator had a magical effect!

[underdog13]

What did you threaten to report the solicitor for, Nailpost? Might help some folk on here if you can tell us.

[FreddyBoy1957]

Hi StayingCalm & Nailpost

 

I wrote to the address in St Albans, althought I am aware that it's really just a one-man show in Devon.

 

The case is still stayed - Copes did leave a couple of messages for me to phone them about the account (this was before the deadline for them pleading correctly) but of course I didn't phone back

 

I'm still including the payment via Transcom in my CCCS payment on a moral basis - although I didn't borrow anything from Arrow, and they've made my life a misery. HHHHmmmmmm.....