1st Credit/moon beever Claimform - AA HBOS***Settled Tomlin Order***

[gill5blue]

In their particulars of Claim

they put that the default date is 04/11/09,

but the default letter I have is dated 27th June 2009 (I don't think I got this until May 2010).

 

 

Also the November date is in the WS, would this be important?

 

I don't think they have a copy of the Default notice, I think they are guessing. I have a copy of the Default notice

 

Gill

[honeybee13]

Hello there.

 

We've received your reported post asking for help. As it's Sunday, the forum guys are probably having some time for their own lives, but I would expect they'll be along later.

 

HB

[gill5blue]

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

2. Paragraph 1 is denied with regards to an amount due under an agreement. The Claimant/Solicitor has refused to disclose any agreement on which its claim relies upon.

On the 01/04/2004 the defendant signed an application form for a 'AA' credit card. On the back of the application form, there are terms and conditions numbered 1 to 1.6 and referencing a term and condition 8.2. this term (8.2) is referred to but not on the back of the application form.

Full Terms and conditions were not present at the time of applying but were supplied later 13/03/2009 after being requested, but there is no valid agreement between the claimant and the defendant

3. Paragraph 2 is denied, their date is incorrect. On the Saturday 27/06/2009 an invalid Default notice was issued. The date of the Default Notice Letter is 27/06/2009 and to pay 'before the 11th July 2009' The Consumer Credit Act 1974 section 88 specifies :

A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

The earliest I could of received the default would have been 29/06/2009 and 14 days after that is 13/07/2009. I was not given 14 days, therefore the Default Notice is invalid.

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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 F

Therefore with the court’s permission the Claimant is put to strict proof to:

(a) show and disclose how the Defendant has entered into an agreement; and

(b) show and disclose how the Claimant has reached the amount claimed for;

© show how the agreement was legally terminated to allow the claimant relief.

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

4. As per _Civil Procedure_ (http://www.consumerforums.com/resources/legal-guides-and-manuals/53-small-claims-procedure-a-practical-guide.html) Rule 16.5, it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the *_consumer credit_* (http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?423-Consumer-Credit-Sourcebook-(Conc-FCA-rules)) Act 1974.

6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[gill5blue]

Hi,

Is there anybody available to give feedback?

I have done the draft as above and ready to print out adding the poc of course and relevant paperwork Cheers In advance Gill

[gill5blue]

Hi,

I would like to edit some of my previous posts but the edit button is not there.

How do I edit the posts

Gill

[dx100uk]

after 24hrs you cannot sadly.

 

 

dx

[gill5blue]

Thanks dx

[gill5blue]

Hi to the three members viewing my thread,

 

I have spent all day creating my defence, and printing off what I needed to.

 

I have removed as much info from my threads as I could,

because felt it could be linked to the case

 

 

and as I felt I wasn't getting the feedback in time.

It is now not needed

Cheers

Gill5blue

[AndyOrch]

So you are all sorted and finalised then gill with your proposed amended defence?

 

Andy

[gill5blue]

Well I don't really know how to answer that Andy.

Maybe you could answer the question in post 124

Gill

[AndyOrch]

Yes ....your defence should be drafted in a way which encompasses their particulars but also takes into account their Witness Statement points raised...so in effect you have gone past the holding defence stage and are now responding in a particularised style.

 

Gill just for the record you are aware that removing posts is against the forum rules...and is not within keeping to the forum ethos.

 

Regards

 

Andy

[gill5blue]

No I didn't realise Andy

[AndyOrch]

RE post your final draft here now.....what date is the deadline to email this to the court?

[gill5blue]

Andy, my post 124

The question I would have liked to be answered is

Is it important that they think the date of the default notice is nov 2009, but I received it june 2009. It seems odd to me

Gill

[AndyOrch]

Andy, my post 124

The question I would have liked to be answered is

Is it important that they think the date of the default notice is nov 2009, but I received it june 2009. It seems odd to me

Gill

 

Its irrelevant at this stage....whether a Judge wishes to act on it is another question...but its not a showstopper as regards to a successful defence

[gill5blue]

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is denied with regards to an amount due under an agreement. The Claimant/Solicitor has refused to disclose any agreement on which its claim relies upon.

On the 01/04/2004 the defendant signed an application form for a 'AA' credit card. On the back of the application form, there are terms and conditions numbered 1 to 1.6 and referencing a term and condition 8.2. this term (8.2) is referred to but not on the back of the application form.

Full Terms and conditions were not present at the time of applying but were supplied later 04/06/2009 after being requested, the terms and conditions supplied on 04/06/2009 are different to the terms and conditions in the witness statement. there is no valid agreement between the claimant and the defendant

 

3. Paragraph 2 is denied, their date is incorrect. On the Saturday 20/06/2009 an invalid Default notice was issued. The date of the Default Notice Letter is 20/06/2009 and to pay 'before the 4th July 2009' The Consumer Credit Act 1974 section 88 specifies :

A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

The earliest I could of received the default would have been 22/06/2009 and 14 days after that is 06/07/2009. I was not given 14 days, therefore the Default Notice is invalid.

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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 F

 

Therefore with the court’s permission the Claimant is put to strict proof to:

 

(a) show and disclose how the Defendant has entered into an agreement; and

 

(b) show and disclose how the Claimant has reached the amount claimed for;

 

© show how the agreement was legally terminated to allow the claimant relief.

 

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5, it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act

and Section 82A of the consumer credit Act 1974.

6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

the text size seems to be all over the place

[gill5blue]

Hi Andy,

You may know it is irrelevant, I do not.

This is my last stage, so I am including everything.

I have added pocs, I have posted the draft copy not the final copy because it has personal details in it.

I have to post these Tuesday to reach court Thursday, also the Claiment has to receive a copy, and I cant do that by email

Gill

[AndyOrch]

Many thanks...now leave that post and leave it with me...I have time in the morning to run through it as I stated i would last week..I will draft you a particularised defence in response to the claim and witness statement and you can check it tomorrow/evening ready for email to the court...you can post the claimants copy at leisure.

 

Regards

 

Andy

[gill5blue]

I work Monday all day so needed to sort this out today. I have said this many times in previous posts

Gill

[AndyOrch]

I respect that but I have a rest at weekends...but when I state I will do something I do it.

[gill5blue]

Thanks Andy,

I will look at it tomorrow

Gill

[gill5blue]

Sorry that I broke the rules xx

[AndyOrch]

Particulars of Claim (for reference only not to be included in the defence)

 

The claimant claims the sum of £13k for debt and interest.

 

1. On the 01.04.2004 the defendant entered into an agreement with AA personal finance ltd for a credit card ref no 9999.

 

2.On the 01.11.2009 the defendant defaulted on the agreement with outstanding balance of £12k

 

3. the debt was assigned to st credit for the sum of £12k. .Notice of assignment was sent to defendant in accordance with S.136 law of property act 1925. and

 

claimant claims

1. the sum of 1£2k

2. Statutory interest pursuant to section 69 of the county court act 1984 at a rate of 8%

per annum from 01.07.2013 to 01.08.2014 £1000.00 and 2.49 daily rate until judgement or sooner payment.

 

 

Proposed amended particularised Defence

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted, the defendant recalls completing an application form for a 'AA' credit card (BoS) on or around 1st April 2004.The application referred to various terms and conditions contained within the application which were not present on the application form.

 

Full Terms and conditions were not present at the time of applying but were supplied later 04/06/2009 after being requested, the terms and conditions supplied on 04/06/2009 are different to the terms and conditions relied upon in the claimants witness statement for Summary Judgment.

 

Since that date numerous requests under section 78 have been made to various DCA,s...including the claimant and all have failed to comply with this request in full being that the request is deficient of the true Terms and conditions thus they remain in default of section 78 (1).

 

It is also therefore averred that the application fails to satisfy section 127 (3) of the CCA1974.

 

The claimants reference in their Witness Statement to Carey v HSBC is irrelevant with regards to enforcement.

 

3. Paragraph 2 is noted, however their date is incorrect.....as I recall a default Notice being dated 20th June 2009.It is accepted that the agreement was then terminated.

 

Not withstanding the above it is brought to the courts attention that neither the BOS or 1st Credit have ever issued Notice of Sums in Arrears since the default date pursuant to sec86C and 86D of the CCA1974 and therefore the creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

Therefore with the court’s permission the Claimant is put to strict proof to:

 

(a) show and disclose how the Defendant has entered into an agreement; and

 

(b) show and disclose how the Claimant has reached the amount claimed for;

 

© show how the agreement was legally terminated to allow the claimant relief.

 

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5, it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act

and Section 82A of the consumer credit Act 1974.

 

6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

STATEMENT OF TRUTH

 

The contents of my defence are true to the best of my knowledge and belief.

 

Signed

 

Dated this day……………………..2015

[gill5blue]

Hi Andy,

That looks fantastic, much better than my waffle.

Would I have to attach to the defence my paperwork to support my statements ie Default Notice, and different terms and conditions or do I take them to court?

Gill

[AndyOrch]

No standard disclosure follows......what will happen is your defence will be reviewed by the judge and if he feels there are grounds...then Summary Judgment will be denied and the claim then proceeds to trial....however if he feels that your defence has no merit then SJ will be granted and that will be the end of the claim....we will see.