Help Please - Shoosmiths Taking me to court

[reallymadwoman]

Any charges on the statement of account?

[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?

[reallymadwoman]

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