Help Please - Shoosmiths Taking me to court

[Loser4u]

Hi

I have recieved a claim form from Northampton CCBC dated the 3/12/08 with Shoosmiths acting on behalf of Alliance & Leicester - no supporting documentation with the claim.

 

So followed the advice on various other threads on here and made a CPR18 request.

 

They replied with their usual letter that this is not a fishing expedition and that they will endeveor to send the documentation out by the 22/01/09

 

Made AOS on 15/12/08 and received the following below dated the 22/12/08 along with a statement of account and a formal demand for payment dated 1/11/07

 

"http://i49.photobucket.com/albums/f288/Loser4u_2008/Page1.jpg"

"http://i49.photobucket.com/albums/f288/Loser4u_2008/Page2.jpg"

"http://i49.photobucket.com/albums/f288/Loser4u_2008/Page3.jpg"

"http://i49.photobucket.com/albums/f288/Loser4u_2008/Page4.jpg"

"http://i49.photobucket.com/albums/f288/Loser4u_2008/Page5.jpg"

 

All the documents have the correct account number.

Page 1 and 2 have bar codes and page 3 doesn't.

On the POC they refer to a default notice - 2/10/07 which doesn't match the dates on the default notice.

 

What is my next stage as I need to submit a defence by the 5/1/09

[42man]

I may be wrong on this but isn't the default notice incorrect ?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

[42man]

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[reallymadwoman]

Any charges on the statement of account?

[Loser4u]

Any charges on the statement of account?

 

2 x £25 charges for letters

[Loser4u]

Can you review this and advise if it is a suitable defence

 

Thanks

 

 

 

 

In the xxxxxxxx County Court

Claim number xxxxxxxxx

Between

xxxxxxxxxxx- Claimant

and

XXXXXXXXX - 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 pursuant to Civil Procedure Rules (“CPR”) Part 16.5(1)(b).

 

2.The Particulars of Claim disclose no legal cause of action and are vague and insufficient. They 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. There appears to be doubt as to the actual date of the default notice as well.

 

3. 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

4. On 22/12/2008 the Claimant sent me a copy of the Default Notice. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). These state that a clear period of 14 days must be allowed from the date of service to allow the debtor to rectify the default. The default notice was dated Sunday the 16/09/2007 so the deemed date of service was 18/09/2008 and required action to be taken before the 30/09/2008. See Exhibit A1 The default notice failed to give 14 clear days from that date so is ineffective

 

4. Notwithstanding the above paragraph, 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.

 

5.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)

 

6. 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.

 

7. 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 2004, 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 believe the above statement to be true and factual

 

 

Signed …………………

 

Name

Date

[reallymadwoman]

Can you review this and advise if it is a suitable defence

 

Thanks

 

 

 

 

 

In the xxxxxxxx County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxx- Claimant

 

 

and

 

 

XXXXXXXXX - 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 pursuant to Civil Procedure Rules (“CPR”) Part 16.5(1)(b).

 

2.The Particulars of Claim disclose no legal cause of action and are vague and insufficient. They 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. There appears to be doubt as to the actual date of the alleged default notice as well.

 

3. 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

 

4. On 22/12/2008 the Claimant sent me a copy of the alleged Default Notice. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). These state that a clear period of 14 days must be allowed from the date of service to allow the debtor to rectify the default. The alleged default notice was dated Sunday the 16/09/2007 so the deemed date of service was 18/09/2008 and required action to be taken before the 30/09/2008. See Exhibit A1 The alleged default notice failed to give 14 clear days from that date so is ineffective

 

 

4. Notwithstanding the above paragraph, 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.

 

5.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)

 

6. 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.

 

7. 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 2004, 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 believe the above statement to be true and factual

 

 

Signed …………………

 

Name

Date

 

Should you be mentioning the unlawful penalty charges included within the default notice as well?

[Loser4u]

Should you be mentioning the unlawful penalty charges included within the default notice as well?

 

If I have understood the information from 42man's posts correctly the invalid DN is enough on its own.

As a bonus a formal demand for full repayment was made after the deadline for the DN had expired so this is confirmation that the agreement has been terminated. As the DN is invalid and the account has been terminated the maximum that could be claimed is the amount of arrears as specified on the DN.

 

If this is correct should the payments I have made since the account was terminated be deducted from the total balance or from the amount of arrears at the time the DN was issued ?

[42man]

If it was me in your shoes, I would put as much in the defence as possible, remember if it boils down to it you will be in front of a judge (who you may possibly have to educate on the Consumer Credit Act !!) and an opposing solicitor...on the other hand the judge may know quite a bit about the Consumer Credit Act....but you need to know as much as possible !!!

[reallymadwoman]

I agree. Challenge the default notice on every ground possible.

[Loser4u]

Thanks for the advice - I will amend defence to include about the charges being unlawful

 

Does the initial defence need to be in as much detail as that above as this is the outline for the reasons for defending the case at this stage.

Edited December 31, 2008 by Loser4u

[Loser4u]

Defence has been submitted including reference to the unlawful charges applied to the account.

For info the charges were added after the DN had expired and after a formal demand for full payment was received and it deadline had expired.

 

Also added in about my CPR18 request and as the information received so far made no reference to my request I can't determine if I have all the relevant information yet for my case. As a result I'm unable to complete a full defence at this time.

 

Wait for the court date and or Shoosmiths response now - Thanks for all the help so far

Edited January 1, 2009 by Loser4u
Added extra detail

[Loser4u]

Update

Court ordered Shoosmiths to file AQ pay fee within 7 days from service of order. They did but only just - have sent their own draft directions and claim is now stayed for a month to allow settlement to be reached.

I sent a letter about 2 weeks ago by recorded delivery thanking them for their AQ and said I would be looking forward to their proposal fro reaching a settlement. I know the letter has been delivered but have yet to receive anyhing from them.

 

Do I need to follow this up with a further letter detailing the last bit from above and copy the court to show I am trying and they aren't.

 

Any idea of how much their real costs are likely to be as their estimate is over £8k

[Loser4u]

All over now

I got a letter of discontinuation from Shoos after chasing them up. This was sent a couple of months ago to the court but not me

Have checked it is validity with the court and they have confirmed the status of this case.

I think the next step is to SAR Shoosmiths and then follow this with a complaint as to why they didn't send to me when they have said they sent to all parties on the discontinuation form.

After Ihave failed to get a satisfactory response to my complaint from Shoos, who is next in the complaints process that would cause them the most pain and or difficulty?

[selfhelp]

Really interesting, wish I'd checked in before to help but have been so busy. A&L took me to court via Shoosmiths @ year ago. Final defence submitted and awaiting hearing date to get claim struck out along with interim charging order and costs. Will check back in and let you know how I got on. No default notice issued and as far as I'm aware FOS have compensation process which is banded up to @ £5k, but if anyone has any ideas as to most effective route for compensation for harassment, damage to reputaion and creditworthiness would love to hear.

Regards