me v restons / **DISCONTINUED**

[supasnooper]

Ask Restons to remove the collection charge. They have put it on and they are not allowed to unless it is mentioned in the original agreement.

 

Also send them a CPR31.14 request as well........they have been known to send erronous documentation.

[Perdita]

Thanks SS - I have done a letter and CPR - will wait and see what happens - defence is to be in by 18th June

[Perdita]

I miscalculated the deadline for the defence, it has to be in by 22nd May.

Can anyone advise on the defence strategy. I have sent the cpr 31.14 but got no response and also a letter requesting they remove the collection charges and interest which again ive had no response to. I know this can all go in the defence but can anyone point me in the direction of any other threads/cases where this has been used.

Many thanks

P

[Perdita]

I have put together this defence fromothers i have used but have added a bit about the POC having a collection charge on it. Ive had no response to CPR letter as yet. Defence has to be in by 23rd so could someone cast a glance over it to make sure I havent made any major errors.

Many thanks

 

 

In the Northampton County Court

Claim number

 

 

Between

 

HFC Bank Ltd - Claimant

and

- Defendant

 

Defence

 

1. I ……………….of………………………, am the defendant in this action and make the following statement as my defence to the claim made by HFC Bank Ltd

2. 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.

 

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

 

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

 

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

 

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

 

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

 

d) The particulars of claim also include collection charges which should not be on the claim unless stated on the original agreement. A letter dated 28/05/2009 was sent to the claimant requesting the collection charge be removed from the claim.

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement 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.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Excerpt taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008)

 

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.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

 

 

 

The Request for Disclosure

 

9. By a letter dated 28/05/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 31.14, (Exhibit 1) copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement and the Notice of Default. The claimant has not responded in any way.

10.

 

10. Since the claimant has refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimant’s allegations at this stage

 

11. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me.

 

12. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

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

 

 

 

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

 

14. 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 with 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

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

17. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

18. The claimant is therefore put to strict proof that such a compliant document exists

 

 

19. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

20. 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.

 

21. Notwithstanding point 20, 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)

 

22. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

23. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

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

 

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, Should the court order the claimant to produce the necessary documentation. 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.

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

Date

[trooper68]

They're back - and with a copy of the CCA and default notice - links posted below - can anyone advise how it looks please ?

 

http://i605.photobucket.com/albums/tt133/maverick97/hfc1.jpg

http://i605.photobucket.com/albums/tt133/maverick97/hfc2.jpg

http://i605.photobucket.com/albums/tt133/maverick97/hfc3.jpg

 

Many thanks

 

P x

 

 

Err, the date looks wrong on the first JPG, was the "original" a photocopy?

Looks a bit wierd...

 

Trooper68

[Perdita]

It is a copy or microfiche but i think it is a 0 and 1 joined badly but i agree it does look like a 9

 

P

[trooper68]

It is a copy or microfiche but i think it is a 0 and 1 joined badly but i agree it does look like a 9

 

P

 

Hi Perdita

 

So it's not "clear" what it is.

 

trooper68

[Perdita]

No it isnt but the whole thing has terms and conditions missing and it says it is an application so i think there are going to be holes in it as well as the date

 

p

[Perdita]

Could someone just cast their eye over the defence for me please as it needs to be on its way on monday - thanks

P

[Perdita]

Bump please - anybody

 

Thanks

[AndyOrch]

Hi Perdita

 

The defence look fine up to the point were you start going into case laws etc and is far too long IMHO

A defence should deal with the claimants pleading and refute just the points raised in the P.o.C 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 Perdita make this statement as my defence to the claim brought by

HFC bank

 

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.

 

 

 

I would also advocate sending the following to the Claimants Sols

 

 

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 and Default Notice 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 Faithfully

 

There fits nicely into CCBC/ MCOL and saves you postage

 

Regards

 

Andy;)

[Perdita]

Thanks Andy - will get the letter off and file online tomorrow, many thanks again for all your help, it is much appreciatd.

 

P x

[Perdita]

defence filed online and letter sent to restons - now lets see what happens

 

P x

[Perdita]

Ive had no response to any letters to restons and now have the AQ to do for nexrt wednesday - any suggestions for the draft directions??

 

Thanks

P

[supasnooper]

Have a look through these links (courtesy of 42man) -

 

Help filling out Allocation Questionnaires.

 

Link Financial County Court Summons - N150

 

Directions for N150 or N149 Allocation questionnaire - Paul's guide to N149 & N150 AQ's

 

Allocation Questionnaire...Urgent help needed please!!! - N150

 

Court papers received- what now??!!**WON**CASE DISMISSED - N149 (with draft order for directions)

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

[Perdita]

Just had a closer look at the AQ and it is N149 small claims - in section A Settlement should i tick that i wish to use the FREE small claims mediation?? do claimants generally go for this ? what generally happens in these cases?

Thanks

P

[Perdita]

Ive had a look at the other posts but admit to being totally confused as to what to put for the draft directions and other information as it is n149 and i have only done n150 before

Heeelp pleeeease

 

P

[AndyOrch]

All depends on the individual case, its normaly expected the Claimant would tick yes to settlement, as it goes in their favour that they are least trying to be amicable about the matter.Whether you wish to use the mediation offer is only something you can decide as the defendent and the merits of your defence.I always advise to tick settlement not only does this allow an extra month/s in proceedings but also shows willingness on your side to to appear to be amicable also, in no way does it reflect a weakness on your side or defence.Common sense I suppose.

 

Regards

 

Andy

[AndyOrch]

As this is SCT Perdita Disclosure and Directions are some what restricted compared to the N150 and cases are usually directed by the DJ.

 

Regards

 

Andy

[Perdita]

Thanks Andy - should I put anything in the other information bit or not then.? I was just going to put something along the lines of the POC having a collection charge on it which I have requested be removed but which has been ignored and also that the copy of the agreement is illegible and incomplete.

 

P

[AndyOrch]

Yes you may use that box to highlight anything the DJ may need/bring to his/her attention, in order to direct the case further.You can still submit a draft direction but as said its a lot more restrictive than in Fast Track cases something along these lines may be considered:-

 

Case No.XXXXXXXX

IN COUNTY COURT

B E T W E E N:

A CREDITOR LIMITED

Claimant

 

–

and –

MRS Perdita

Defendant

DRAFT ORDER

Proposed directions:

[1. The case to be stayed for one month while the parties attempt to settle the case.]

[1] [2] If settlement is not achieved standard disclosure by list by 1 Oct 2009.

[2] [3] Inspection by 7 Oct 2009.

[3] [4] Witness statements of fact to be exchanged by 7 Nov 2009.

[4] [5] To be listed for trial with trial window of 8 December2009 to 8 January 2010.

Dated the day of 2009

 

 

 

You can add remove what you think will be the crux of the claim and what you need to be disclosed.As said though vey much directed by the DJ but the advantage of SCT is the costs.

 

Regards

 

Andy

[Perdita]

This is what i propose tp put in the other info bit;

 

On receipt of the court papers I noticed that the Particulars of claim contained a collection charge which I beleive is not permitted unless stated on the original credit agreement. The copy of the credit agreement supplied to me is illegible and I am unable to verify that it contains the necessary prescribed terms and conditions and also whether there is an allowance for a collection charge to be made. I highlighted this information by letter to the claimant but as yet I have had no response. I also requested that they amend the particulars of claim accordingly but have also had no response.

 

I will leave the directions as you have put them as they seem ok and i see that the standard directions in these cases require the original documents to be broguht to the hearing but do i need to add that into my directions?? I m getting a bit confused here - sorry

 

P

[AndyOrch]

Yes Perdita if the crux of the matter is the agreement and its T&Cs re collection charge then by all means add them in at point 1.2. ie in particular

 

Regards

 

Andy

[Perdita]

They have already said in a letter that they dont have the original agreement so im presuming this is a microfiche - can they still use it?

P

[AndyOrch]

They have already said in a letter that they dont have the original agreement so im presuming this is a microfiche - can they still use it?

P

They can try but they will also have to try and plead their case from a illegible copy.They should produce the original (said should very loosely) as you see here on Cag cases depend on the DJ on the day.But if it cant be read then it cant be proved either.When time comes to Standard Disclosure they will have a problem.

 

Regards

 

Andy