Nottsdave/Capquest-Court date soon.

[ScabHunter]

Nottsdave,

 

You have made a great start by posting on the CAG nice and early. You would be amazed at how many people leave things until the last minute, or even leave it too late and suffer a judgment in default against them.

 

Is it possible for you to scan your claim form, and post it on the site? If you do, please make sure that you black out anything which will identify you personally.

 

It is vital to know exactly which documents are mentioned in the Particulars of Claim, as it affects the wording of the CPR request letters you will need to send. We also need to know who the claimant is, and the address to send documents to.

 

Silverfox is right. If you do nothing, judgment in default will be entered against you. So, you must acknowledge service, which will give you 28 days to prepare a defence.

 

SH

[ScabHunter]

What is almost certainly happening Nottsdave is that Capquest have forwarded your CPR 31.14 request to the courts and pretended it is your defence.

 

This happened in a case I prepared a defence for two weeks ago. We are still awaiting a response to the letter which was sent to the court pointing this out.

 

This behaviour is despicable and unbelievable, even by the standards of DCA dirty tricks. You will need to write to the court explaining that you have not submitted a defence, and you will still need to submit your own proper defence in time and in accordance with the rules.

 

Now that this has happened twice, and both times perpetrated by the same despicable organization, it must be time to start a separate thread in the Legal Issues section of the forum.

 

It looks as though this is now going to become a regular tactic in these cases, and we need to work out the best way of countering it - quickly.

 

SH

[ScabHunter]

Here is the thread where this has happened before - I had to go 11 pages deep to find it!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/166301-received-letter-northampton-court.html

 

I would have bumped this or PMd the OP to try and get an update, but he hasn't been online for a few days. I would like to know whether or not he has heard back from the court. That is the big problem - the situation remains unresolved, and the court are being far from helpful.

 

It is a long thread, but it might help you to go through it. Apart from the split claim issue, the case is fairly similar to yours.

 

SH

[ScabHunter]

Make sure you ask whether the supposed "defence" was entered online, or whether it was posted to them. This is critical in knowing how to draft the letter you will need to send them.

 

SH

[ScabHunter]

Well, if it is a genuine error, it is a remarkable coincidence.

 

The only problem with telephoning the court is, as ever, that there is no evidence of any conversation having taken place. I still think it will be advisable to send a separate letter to the court, with proof of delivery.

 

This is why it is so sensible not to leave things until the last moment. By dealing with the court claim promptly, you have allowed yourself time to deal with any unforeseen circumstances and still get a valid defence in on time.

 

We can now start working on the proper defence. I will be offline for a few hours, but I will check back in here as soon as I'm back again.

 

SH

[ScabHunter]

Hi

Should I write to the court confirming that I have not filed a defense ?

 

Notts

 

If I was in your situation I would definitely do that. As of now there is only a telephone conversation, and you have no proof that that ever took place.

 

Write to the court, send it recorded delivery. State that the purpose of the letter is to confirm what was said in the telephone conversation of 10/12/2008 between yourself and .

 

State that you have acknowledged service on 5th December. State that you have not yet filed a defence, but will do so within the time allowed.

 

State that due to a computer error erroneously stating that you had filed a defence, you needed to contact the court to have the entry corrected, that you were assured the necessary correction would be made, and that you would now appreciate confirmation of the necessary correction having been made, in writing.

 

SH

[ScabHunter]

Hi

 

I sent a letter to the court stating I had not filed a defence , and the day after I got a letter from the court saying they had forwarded my defence to the claimant .

 

Confused for sure.

 

I will wait to see what response I get from my letter to the court.

 

Notts

 

So they must have sent you this letter after you had had that telephone conversation which of course you cannot prove.

 

Have you looked on the MCOL website to see if the "defence" is still on there?

 

You will now need to raise a formal complaint about the court's behaviour using form EX343 here -

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

I only wish dazza from the other thread would come back on line so we could find out what is happening there. There is something VERY nasty going on here, and we need to get to the bottom of it - quickly.

 

SH

[ScabHunter]

Hi SH

 

Mycol still states defence has been filed.

 

Notts

 

I should be surprised, but, frankly, I'm not. It is just a shame that you haven't got a recording of that conversation during which the court employee said they would remove the fake defence.

 

Never mind. The facts are that a bogus defence has been submitted by person or persons unknown, that the courts has stated they would remove it so you could submit a proper defence, and that they have failed to do so. They have now sent a letter to you which blatantly suggests that they are still regarding the fake defence as the genuine article.

 

It is therefore quite justified and proper that you make a formal complaint about the court's conduct. In fact, I believe it is necessary that you do so.

 

Obviously there are limits to what can be said on a public forum, especially when you are alleging misconduct. Let's just say for now that something is clearly not right here, and that it needs to be investigated.

 

On your part, I believe the crucial points are a) to make sure that all irregularities are reported and complained about, in writing so that there is clear evidence, and b) that you submit a legitimate defence within the proper timeframe, bearing your own genuine signature, irrespective of any fake documents which others may try to pass off as your defence.

 

For now, download the EX343, and have a look at it. I will be updating my thread in the Legal Issues section sometime today.

 

SH

[ScabHunter]

Hi SH

 

I have printed the form off, should I send it now or wait until they return my letter ?

 

Notts

 

I'm just looking at the dates involved. This is a strange time of year in that there are so many holiday days between now and the deadline for submitting your PROPER defence.

 

Normally, I would say give them chance to reply, but time is running out. How much time are you supposed to give them? There is a weekend nearly upon us as well, which means two more days lost in which nothing can be done.

 

I would say give it until Tuesday at the latest. This is a very serious matter, and if they are going to act on what they have said it would be done by then.

 

One question I should have asked is what is the date on the letter where they say they will forward your "defence" to the claimant?

 

Get a draft of what you are going to say on the PC, so that if you hear nothing in Tuesday's post, you can get the form printed off and sent so it gets to the court on Wednesday.

 

While all this stupidity is going on, there is still the business of getting a proper defence submitted on time. Over the weekend I'll give this thread another good study, because there are vitally important issues here.

 

In the end, of course, it has to be up to you. I can only say what I would do, and I have no experience of being in this situation. I think very few people have.

 

SH

[ScabHunter]

Hi

 

The court tell me my defence has to be in by 5th Jan

 

Notts

 

When did they tell you this?

 

Can you also please tell me the date on the letter you received from the court saying they would forward your "defence" to the claimant? This is vital to know, as it affects very strongly how you need to respond to the court.

 

SH

[ScabHunter]

They had 7 days to respond to your CPR 31.14 request, so they are already out of time.

 

You now have two choices. One is to submit a holding defence, which will mention their non-compliance with the request. You can then challenge them again at the Allocation Questionnaire stage. This is long and drawn out, but will involve you in no further expense.

 

The other alternative is to spend £75 on an application using N244, which you can read about here -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-3.html#post1771008

 

SH

[ScabHunter]

Nottsdave,

 

I feel it is important now to check whether or not the court have removed the bogus "defence" as they promised to do. Have a look on the website and see what it says now, if you can.

 

We also need to try to find out exactly what it was that constituted that "defence". If it was the CPR 31.14 request, then we will know for certain that something is seriously wrong. But we need to be sure.

 

SH

[ScabHunter]

Hi SH

 

I have checked the website and it still states that my defence was received 8th Dec and has been forwarded to the claimant.

I did write to the court saying that I had not submitted a defence and I told them I wanted to know what the defence was and who submitted it, Im still waiting for a reponse to this.

 

Notts

 

Right, as you were told that this bogus "defence" would be removed by a court employee, you are now within your rights to submit a formal complaint using the EX343 form. I would strongly suggest that you do this, as this cannot be allowed to go unreported. I can draft a letter for you if you want me to.

 

This is what should be happening with the other case as well, but dazza hasn't been online for twelve days now. I wish I knew what was happening.

 

You have still got the job of submitting a proper defence in this case. I will need to read through the thread again to see when that needs to be in by. Have you had any response from the requests for information you have sent out?

 

SH

[ScabHunter]

A possible motive for the crime

 

We appear to have two cases on this forum where solicitors have sent CPR requests made to them to the court, and pretended they were the defendant's defences. At first sight, it seems as though there is little reason to do this. Surely anyone can see that a CPR request is not a defence, and anyway a defence needs to be signed with a statement of truth. What is there to gain from this kind of subterfuge?

 

Obviously there is the factor of confusion. Anyone not familiar with CAG and the previous cases of this happening will be stunned to find a defence on the case when none has been submitted. It would increase the chance of the defendant giving up, and the claimant getting judgment in default, by playing the "game" in an extremely dirty and immoral fashion.

 

It has just occurred to me that there may be another motive behind this outrage. In both of these cases, no valid (or even invalid) CCA agreement is known to exist. A CPR 31.14 request was sent to the claimant, thereby alerting them to the fact that the defendant has some knowledge of court procedures, and a definite knowledge that an enforceable agreement is necessary for the claimant to be awarded judgment.

 

With a normal court claim issued through Northampton, it is possible to submit a defence online, as long as that defence is below 8000 characters in length. No signed statement of truth is necessary. By submitting a bogus defence, and confusing the system into thinking that a defence is already on the case, is it not possible for the claimant to force the online system to refuse a genuinely submitted defence, on the basis that there is already a defence on the case?

 

The defendant would then be forced to submit the real defence by mail, requiring a signed statement of truth. A copy of this defence will then be mailed by the court to the claimant. Complete with the defendant's signature.

 

I'll leave you to work out the rest. Any thoughts?

 

SH

[ScabHunter]

I see what your getting at SH, but how do they log in without the defendants password?

 

No CCM, they don't need to log in.

 

They send the CPR request to the court by post as a defence, which causes someone to process the defence and the online system to show that there is a defence on the case.

 

If the MCOL system is anything like most online forms, and I can't verify this without having an actual claim myself, it will be very specific in what it will accept. Presumably, if a defence is actually on the case, it will then not give you the option of submitting another one, forcing you to send it through the postal system.

 

SH

[ScabHunter]

Nottsdave,

 

In my opinion it is time for both dazza3956 and yourself to file complaints with the court using form EX343.

 

Here is a letter I have drafted which I would use in this circumstance. It is, of course, entirely up to you whether or not you do complain, and whether or not you use a similar letter. It is, after all, your case and not mine.

 

"On 2nd December 2008 I received a Claim Form from Northampton County Court Bulk Centre. This was a claim issued by Capquest Investments Limited, represented by the solicitors HL Legal. Three days later, on 5th December, I acknowledged service online stating I would defend all of the claim.

 

I took no further action, until on 9th December I checked the status of the claim on the MCOL website. The website stated that a defence had been received on 8th December, yet I had not filed any defence.

 

On the following day, 10th December, I contacted the court urgently by telephone to try to find out what had happened. In the first instance, I was told that a defence had been filed. I was told that court staff would find the paperwork and call me back. Later that day, I received a call back. The caller stated that they could not find any defence or paperwork, only the acknowledgment of service. Therefore it must be an error. I was told to submit a defence, together with a covering letter stating that this was my first defence as per this telephone discussion. The court staff stated that they would delete the defence filed section on the MCOL website.

 

On the 11th December, I followed up this telephone conversation with a letter, just to make sure the situation was handled properly. This letter reminded court staff that they had assured me that the false defence would be removed from the MCOL website, and I also asked for written confirmation that this had indeed been done.

 

As I write this, a full seven days later on the 18th December, the false defence is STILL showing on the MCOL website.

 

The first issue here is that court staff have blatantly failed to carry out the correction they promised to carry out. According to the MCOL website, there is a defence on this case, yet no defence has been submitted. I will be submitting my genuine defence within the next week, well within the allotted deadline.

 

The second issue is that I am now prevented from using the MCOL website to submit a valid defence, due to the failure of court staff to carry out their promised correction of the erroneous entry.

 

There are even more serious issues here. If the court claim to have received and processed a defence, they must have received something. What, and how? If a defence was submitted online, someone has hacked the software of the MCOL site, and bypassed the need for a password. If, as is more likely, the fake defence was submitted by post, then the court has clearly accepted a document as a defence which does not have a Statement of Truth signed by me. Either way, the court is culpable.

 

The only other possibility is that a blatant forgery has occurred, and that person or persons unknown have signed a statement of truth pretending to be me. For this reason, it is essential that I am furnished with a copy of the document which was submitted purporting to be my defence.

 

I must draw your attention to the fact that in another case of which I am aware, the solicitors acting for the claimant actually forwarded a request for information under the Civil Procedure Rules to Northampton County Court Bulk Centre as a fake defence. Given that this case involves the same claimant and the same solicitor, I think it would be instructive to know the nature of the document which was forwarded to the court purporting to be my defence.

 

I must admit I am astonished at the attitude of court staff towards this blatant abuse of court process. There can hardly be any more deceptive and despicable conduct than a claimant actually forwarding a fake defence to the court. The public who both fund and depend on the court system would expect court staff to be extremely perturbed by the entire system being dishonestly gamed in this way, and would expect both an immediate reversal of the injustice carried out, and a thorough investigation into how it was allowed to happen in the first place. Frankly, the incompetence and gross negligence shown by the staff of Northampton County Court Bulk Centre is both disgraceful and dangerous.

 

Apart from the obvious issue of prejudice to the case in question, there is also the possibility that a criminal offence was carried out by someone forging a signature on a statement of truth. That the court has not even seen fit to investigate this is completely inexcusable.

 

The facts are that I received a claim form Ref No.xxxxxxxx on 2nd December 2008. I acknowledged service on 5th December 2008. I will, during the coming week, submit a valid defence bearing my signature on a Statement of Truth. Any document which may have been forwarded to the court by third parties without my knowledge or consent does not bear my signature, and cannot in any way be construed as a defence.

 

I expect the court to comply with its promise to remove the fake defence from the MCOL website, giving me the option I am entitled to of filing online. I also expect the court to forward to me a copy of any document which has been received purporting to have been sent by myself, which clearly was not sent by myself.

 

As the defendant in this case, I reserve the right to submit my own valid defence, bearing my own Statement of Truth, and signed by myself in the prescribed manner."

 

SH

Edited December 18, 2008 by ScabHunter

[ScabHunter]

Nottsdave,

 

Can you just confirm for me that you have a receipt from the Post Office for the letter you sent on 4th December, and that it bears the address of HL Legal? Can you also confirm that you have Proof of Delivery?

 

SH

[ScabHunter]

Proof of delivery ?

 

 

Thanks for confirming your letter was sent to the right place.

 

I just wondered whether you had been on to the Royal Mail site and checked whether there was anything on there to confirm delivery?

 

SH

[ScabHunter]

Delivery by Tardis, I take it, VG?

 

It doesn't help when you are dealing with stressful and time sensitive court business to have the Royal Mail foul up as often as it seems to do.

 

Institutional claimants with budgets in the millions, on the other hand, are allowed to send court forms through the standard mail to the wrong address, and gain judgment in default. No use of even recorded mail is needed.

 

Justice?

 

SH

[ScabHunter]

The most important step here is to make sure that a proper defence is submitted on time. It looks as though that will have to be done by post, as it doesn't seem as though the court are going to remove the fake defence.

 

As with the dazza3956 case, the court have been informed by both letter and telephone that there is a bogus defence on the case. In both cases, they have had at least two weeks to deal with the situation, and have done nothing. I find their attitude disgraceful in the extreme.

 

This is not a difficult situation to deal with. I am assuming that whatever has been submitted to the court does not have a Statement of Truth attached to it. If it doesn't, it surely shouldn't take too long just to look at it, realise this, and remove it from the case. They should be able to do this in less than five minutes, during the first telephone call, while the victim is still on the line.

 

It takes a lot less time to run an efficient operation than it does a shambles like this.

 

Of course, if there IS a Statement of Truth on the document, then someone has committed criminal fraud, and you might have thought they would be concerned about this. Apparently not.

 

The court have been made aware of the situation by letter and telephone, and have done nothing. In my opinion, there is no option now but to go down the official route using the EX343. And to submit a PROPER defence within the allotted time, complete with a covering letter. I would also be inclined to mention to the covering letter in the defence itself - it may discourage the court from "losing" it, as they have apparently "lost" the bogus defence.

 

Notts, can you just do me one favour. If the fake defence is still listed on the case on the MCOL system, can you just see if it is possible for you to enter another defence? I don't want you to actually enter anything - just see if you can bring up the form so it would let you enter something.

 

I may have to go out for a couple of hours this afternoon, but apart from that, I will be here to help as much as I can. There is something seriously wrong here, and they CANNOT be allowed to get away with it.

 

Have you been following the dazza3956 thread?

 

SH

[ScabHunter]

Hi Sh

 

 

This is what it says on the mcol website when I tried to bring up the defence form.

 

Close this window to return to Money Claim Online.Option set to 'None'

 

If this option is set to 'None' it indicates that action has already occurred on this claim. You may have already submitted forms to the court either manually or electronically. Alternatively, the claimant may have already entered judgment against you or the claim has been transferred to a local county court. This means that you will be unable to use the online service.

I have been following Dazzas thread its all a bit samey dont you think?

 

 

Perdita, its Northampton Court at the moment

 

Notts

 

That is EXACTLY what I expected to happen.

 

That means there is a clear motive for a claimant to submit a false defence to the court, as I explained in the post above on this thread, and in a long post on the dazza3956 thread.

 

This is only hypothetical speculation, but if a claimant sends a letter to the court which is then placed on the case as a defence, it prevents the defendant from using the MCOL system to file a genuine defence.

 

This forces the defendant to submit a defence through the post. A postal defence requires a Statement of Truth and a signature. A copy of that defence is then sent to the claimant, complete with said signature.

 

If the signature was deemed to be of use by the claimant, that would provide the motive for submitting the fake defence to the court.

 

It is noted that in both the dazza3956 case and this one, that no agreement is known to exist. Whether this has any relevance is unknown.

 

It is also noted that the fake defence appeared on this case at exactly the same stage as on the dazza3956 case. In this case, a CPR letter was signed for on December 6th, which was a Saturday, and the fake defence appeared on the case on the 8th. If, as is unproven, the CPR letter was forwarded to the court, the forwarder acted extremely promptly, as the forwarder did in the dazza3956 case, where the CPR letter was definitely forwarded to the court the day it was received.

 

It is further noted that in this case, the court are "unable" to provide a copy of the fake defence, because it has been "lost", yet that does not stop them from refusing to delete it from the case and allow a proper defence to be submitted.

 

I know what I think is going on here, but I need to be very careful what I write on a public forum.

 

I will be making another post later today on my thread in the Legal Issues section of the forum, so I can reference it both from this thread and the dazza3956 one.

 

This situation cannot be allowed to continue with no action being taken.

 

SH

[ScabHunter]

In my opinion you should submit a proper defence through the post complete with a covering letter. This MUST be sent Special Delivery. It is important that you continue to do everything strictly by the book, and not give anyone an easy excuse to strike out the fake defence and award judgment against you.

 

We can get this defence prepared over today and tomorrow.

 

I also believe that both dazza3956 and yourself need to file official complaints on form EX343. The court have been made aware of the existence of the fake defence by both letter and telephone, and have still chosen to do nothing. I don't really see any way forward other than through the official compliants procedure.

 

All you are asking for is for your legal right to submit a defence, and for someone to investigate the events which have taken place. Your case has been prejudiced by the fact that you are unable to submit a proper defence online.

 

In the dazza3956 case a complaint also needs to be made to the SRA, as HL Legal have blatantly forwarded a CPR 31.14 request to the court pretending it is a defence. That MAY have happened here, but without disclosure of the document which forms the fake defence we cannot be sure.

 

Members of Parliament also need to be made aware of what is happening here, but that is not of immediate concern. I was also hoping to get some further evidence before that happened.

 

SH

Edited December 22, 2008 by ScabHunter
typo

[ScabHunter]

Right. The next step in this case has got to be to prepare the PROPER defence, so I'll get my head down and try to come up with a draft.

 

Notts, can you just confirm the following, so I can make sure I've got the facts right -

 

1) You sent a CPR 31.14 request but no CPR 18 request. The CPR 31.14 request covered the agreement and the default notice

2) You sent a CCA request off to Capquest on December 5th, and have had no reply to it

 

I know you got no reply to the CPR 31.14 request. I suspect it may have made a further journey.

 

SH

[ScabHunter]

Argh! That is a shame about the CCA request - you could have done with re-sending that. Never mind, it is not going to have any serious impact on the case now, as they have failed to comply with CPR 31.14.

 

They still have to produce the agreement in court, and there is another opportunity to challenge their non-compliance at the AQ stage.

 

I've got a couple of defences to work on tonight, but I'll try to get something posted before the end of the day.

 

SH

[ScabHunter]

At this stage there is probably little point in sending a CCA request as the Civil Procedure Rules have in a way overridden this. It is not complaince with the CCA request that will determine the outcome now, it is whether they can produce an enforceable agreement in court.

 

Here is a possible defence I have prepared for you. Everything is there except for a few dates which you need to fill in, especially the one in the last point, which is the date you took the card out.

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxx - Defendant

 

 

Defence

 

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

 

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

 

3. The claimants’ Particulars of Claim 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 preceding 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 accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on xx/xx/xxxx I requested that the claimant provide a true copy of the executed credit agreement pursuant to s78(1) of the Consumer Credit Act 1974.

 

6. For clarity, s78(1) states:-

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

7. S78(6) of the Consumer Credit Act 1974 sets out the consequences of failure to comply with such a request and states:-

s78 (6) If the creditor under an agreement fails to comply with subsection (1), he is not entitled, while the default continues, to enforce the agreement

 

8. Capquest Investments Limited have made no reply to this request.

 

9. Further to the case, on xx/xx/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 31.14, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

 

10. Despite the fact that the Civil Procedure Rules 31.15 demand a response within seven days, my request for information under the Civil Procedure Rules 31.14 has been ignored. The request was sent via Special delivery, and was signed for on xx/xx/2008. Please find attached exhibits 2 and 3, copies of proof of posting and proof of delivery. 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 claimants 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 and the courts attention is drawn to the fact that the claimant has refused to respond to my legitimate request. 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 assess if the documentation 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 8 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. Notwithstanding points 12 and 13, both debtor and creditor must sign any such agreements in the prescribed manner. 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

 

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

 

16. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

17. Notwithstanding point 16, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

18. 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)

 

19. Without Disclosure of the relevant requested 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

 

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

 

21. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 9. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

22. In addition 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 is alleged to have commenced in XXXX, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

Statement of Truth

 

 

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

 

 

Signed …………………

 

Date

 

 

Credit as ever to the legendary pt2537, who did all of the hard work.

 

SH