Court defence V HBOS

[gubbins1]

No , no prescribed terms.Only reference to terms is a section that says ' under the terms of this agreement as set out overleaf ' . Unfortunately they did not copy the overleaf.

[creditcardmug]

Ah, so you have to put them to strict proof that the "prescribed terms" are overleaf...the only way they can prove that, is to produce the original document in court...highly unlikely:D

 

So stick with the agreement signed by me does not contain the prescribed terms, as required by the Act.

[creditcardmug]

Here is the relevant stuff on that point,

 

. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

16. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

17. 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

 

18. It is submitted 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. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

19. 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."

20. 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

 

[gubbins1]

Thanks CCM. I will work on preparing my defence over the next couple of days. I've got a day in court tomorrow for a reposession claim on my house. I'll get that out of the way , then maybe I will be able to concentrate a bit better on this claim.

[gubbins1]

Docman or CCM (or anyone else) . If you can find the time , I would appreciate an expert eye cast over my defence . Any suggestions for changes or additions would be welcomed.

 

In the XXXXXXXXX County Court

Claim number XXX

 

Between

 

XXXXXXXXXXXX- Claimant

 

 

 

and

 

 

 

Mr XXXXXX – Defendant

 

 

 

 

I would like the court to accept this amended defence as a replacement for my defence supplied to the court on 9th January 2009.

 

Defence

 

 

I ,XXXXXXX , am the defendant in this

claim and make the following statement as my defence to the claim made by XXXXXXXXXXX.

 

1 : That the document attached to the claimants Particulars of Claim (Exhibit A) , does not constitute a valid credit agreement and is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

2 : Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

 

3 : Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

 

4 : 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—

 

a. Number of repayments;

b. Amount of repayments;

c. Frequency and timing of repayments;

d. Dates of repayments;

e. 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

 

 

 

 

 

5 : It is submitted 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. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

6 : 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:

 

 

“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."

 

7 : 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

 

I respectfully request that the court consider ordering this agreement unenforceable pursuant to

Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

 

 

Statement of truth

 

I , XXXXXXXXX , believe the above statement to be true and factual

 

 

 

Signed…………………………………………….

 

 

Date 11th February 2009

 

 

 

 

 

Thanks yet again.

 

Gubbins.

[creditcardmug]

You will need this bit in there as well

 

. 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;"

[creditcardmug]

We also need something in to refute the s69 interest...im still looking.

 

we will i think need something on the DN

 

What about deeds and notices of assignment?

[creditcardmug]

The claimant claims interest pursuant to section 69 County Courts Act 1984

it is averred that this is not permissible as stated in (interest on judgement debts)Order 1991(No.1184(L, 12) section 2(3). this being a regulated agreement regulated under the Consumer Credit Act 1974

[gubbins1]

Hello CCM , I get the part about the S69 interest charges , but you have lost me a bit with the deeds and notices.

[creditcardmug]

I just read thro, forget that its still with the OC so hasnt been assigned.

 

Ok have you got a Default Notice, i think that's the only other bit to look at

[gubbins1]

I have the default notices from the debt collectors Wescot.I probably have some from HBOS , but i would need to search for them. Which do i need ?

[creditcardmug]

There can only be one, it will be from Hbos

[gubbins1]

OK, that'll take some finding. Need to pop out now , but will get on it first thing. What sort of info do i need off of it ?

[creditcardmug]

Most of them are defective in lots of ways, and if so it can be a defence to a claim, so you need to scan it up so we can see whether its valid or not.

[gubbins1]

Right , i will find it and try to get my scanner working. It's a bit tempremental.

[Docman]

Gubbins,

 

Sorry I've been bus at work for the last couple of days.

 

You don't have to find whatever default notice was sent to you now. HBOS should have stated in their POCs that a Default Notice had been served and produce a copy. They have failed to do so and therefore have provided further grounds for defence.

 

Can I suugest you start your defence by formally deniying the claim. You infer a denial but you should make it explicit in you defence. Appropriate wording would be:

 

"Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant’s Amended Particulars of Claim and puts the Claimant to strict proof thereof."

Next you need to link the HBOS statement about a 'mutually agreed " to the Consumer Credit Act by something like

"If, which is not admitted, the document [Exhibit A] is a credit agreement it is submitted that any such agreemnt is subject to the provisions of the Consumer Credit Act 1974".

then carry on with your comments about the requirments of the CCA. Incidentally, CCM makes an excellent point about them having made 'disposition to you'. Keep that in but if you feel the need to reinforcce the point about having had the credit, what the law calls 'unjust enrichment', then you could also add the words of Hoffman LJ in a case from the House of Lords where he said

“The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law. " Dimond v. Lovell [2000] UKHL 27

Then carry on with the rest of your defence but add a section on a default notice such as

S 87 CCA 1974 clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

Furthermore s 88 CCA 1974 requires that a default notice must be in the prescribed form. The prescribed format for a default notice 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).

It is denied that any Default Notice in the prescribed format was ever received frrom the Claimants. The Defendant puts the Claimant to strict proof that any default notice said document in the prescribed format was delivered to the defendant."

Don't forget about disputing their claim for interest.

Best of luck

 

[gubbins1]

Thanks docman. Are you saying that a lot of the first draft of my defence needs to be removed, or just add the bits you have included above ?

 

With regard to the default notice, I don't seem to have received one. I had a formal notice which I have copied below. Not sure it is of any use.

 

Formal Notice

 

Your Account is in arrears

You must now make an immediate payment to avoid further action

Being taken.

As a consequence , you must now return any cards relating to this account that you have in your possession immediately.Your credit facilities have been withdrawn .DO NOT ATTEMPT TO USE THE CARD AS IT WILL BE RJECTED.

Please not that whilst your account remains in breach of the terms and conditions , default information will be registered with credit reference agencies.

This could affect your ability to get credit in the future. Theinformation supplied reflects the actual payment history in comparison to the terms and conditions of your agreement.

It is in your own interest to deal with this now. Ring us immediately on the telephone number above.to discuss an acceptable solution or to make a switch or delta payment.

 

I'll start editing the defence with your suggestions.

[gubbins1]

Hello docman , CCM . I've had a rewrite. Maybe you could have a read through if you have the time . Again, any suggestions greatfully received.

 

In the Kingston upon thames County Court

Claim number xxxxxx

Between

Bank of Scotland (Texaco Global)- Claimant

and

Mr XXXXXXXX – Defendant

I would like the court to accept this amended defence as a replacement for my defence supplied to the court on 9th January 2009.

Defence

 

I am XXXXXXXX XXXX, 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 amended Particulars of Claim and put the claimant to strict proof thereof.

1 : If , which is not admitted the document attached to the claimants Particulars of Claim (Exhibit A) is a credit agreement , it is submitted that any such agreement is subject to the provisions of the Consumer Credit Act 1974.

2 : That the document attached to the claimants Particulars of Claim (Exhibit A) , does not constitute a valid credit agreement and is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

3 : Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

4 : Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

5 : 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—

a. Number of repayments;

b. Amount of repayments;

c. Frequency and timing of repayments;

d. Dates of repayments;

e. 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

 

 

 

6 : It is submitted 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. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

7 : 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:

 

“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."

8 : 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

9 : 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;"

I would also like to add the words of Hoffman LJ from a case in the House of Lords , where he stated

“The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law. " Dimond v. Lovell [2000] UKHL 27

 

10 :S 87 CCA 1974 clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

Furthermore s 88 CCA 1974 requires that a default notice must be in the prescribed form. The prescribed format for a default notice 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).

It is denied that any Default Notice in the prescribed format was ever received frrom the Claimants. The Defendant puts the Claimant to strict proof that any default notice said document in the prescribed format was delivered to the defendant."

 

 

11: The claimant claims interest pursuant to section 69 County Courts Act 1984 it is averred that this is not permissible as stated in (interest on judgement debts)Order 1991(No.1184(L, 12) section 2(3). this being a regulated agreement regulated under the Consumer Credit Act 1974

 

I respectfully request that the court consider ordering this agreement unenforceable pursuant to

Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

Statement of truth

I , XXXXXXXX XXXX , believe the above statement to be true and factual

Signed…………………………………………….

Date 11th February 2009

 

[creditcardmug]

Yes that looks good to me

[gubbins1]

Don't really understand a lot to be honest. I just hope they don't ask too many questions . Thanks for all of your help guys.

[Docman]

Hi gubbibs,

 

Yes, my comments were meant to be added to your earlier draft as you have done. The comment about replacing the first defence is just for the court. It means the court should ignore what you said before and just look to this new draft.

 

To help you understand the flow of the defence, can I suggest that when you tidy up ( paragraph numbers etc), you insert some headings. For example (using your paragraph numbers) before #1, 'CREDIT CARD AGREEEMENT'; #4 'PRESCRIBED TERMS'; #9 'UNDUE ENRICHMENT'; #10 'DEFAULT NOTICE'; AND #11, 'INTEREST'.

[bazaar]

As Docman says, get headings in so you can follow your defense.

You'll need to do some midnight reading to get this straight in your own mind.

Keep reading til youre almost fed up with, if you have questions nagging you, get them on here, even if they seem small.

I suggest that if you're going to refer to previous cases for reference, you should try and get the relevant bits printed off with their headings so you can reference them quickly.

Also, the sections of the Act you refer to you should print out, this will form your court bundle, copy for the judge as well.

The more organised you seem the better, (even if you feel youre not really:))

[gubbins1]

Thanks for the advice. I will do a bit of swotting.Hopefully I will be able to bluff my way through.

[Docman]

Actually you will find in that organising your papers and cross-referencing for ease of access will mean you will be better oreoared. The other side often use a local soliciotr who may only get a few of the papers the day before a court hearig. They hope that defendats do't turn up and therefore they win by default. If a defendant does turn up and is uderstandably flustered, the local solicitor then tries to woffle his way through the case on the few papers he has got. When a sharp judge starts to ask some questions, the local then asks for an adjounment so he can ask for further istructions.