MINT is cca enforcable?

[questioning]

anything definitive here and the above posts as Im putting the final touches to my arguments for wednesday? many thanks

 

Ok so to cut a long story short, the DJ decided he couldnt go thru the whole CCA 1974 to make a decision there and then(slightly longer version on below thread), so ive got 21 days to put a fully particularised defence in. he was happy that they are relying on the fact that the application form is THE credit agreement so i ve pretty much gotta discredit it. Supasnooper has picked some holes in the prescribed terms and the terms and conditions (which the DJ said was presented as tho it was the back of the application form, i can discredit this i think with diff image quality, and supa s point abt charges being diff at the time, which worked at the hearing to a point). ive got to read up on the prescribed terms more, but one point the judge made when i suggested there was no creditor signature, was that the barely legible box with a squiggle was sufficient? if anyone has any ideas on prescribed terms, areas to attack or great links to defences ( ive got 2 to sort with the other thread below) that are relevant i would be grateful. i ll be searching thru myself of course.

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/180864-finding-faulty-cca-agreements-7.html#post2097668

 

Hi r & b,

This ccj was issued through Telford CC in that case this applies ........................

Where a claim is based upon a written agreement:

 

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

 

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

 

They need to have attached the agreement to your claim form. I take it they didn't.

It is claims issued at northampton CC Bulk centre where they can get away with not attaching docs, which is why Northampton is favoured by the claimants. Any other county court they must folllow the rules.

More ammo for you.

 

Regarding post #41, Correct for a debt regulated by the consumer credit act 1974.

This paragraph is copied from my defence ..........."the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to a personal loan & overdraft which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974"

[questioning]

ok gettin the copy docs from court. also they havent enforced the judgement yet (from dec08), as its not regstd on the computer? and they are going for a charging order. lady at the court seems to think they cant do that? its prob a small point but does anyone know abt that side of it?

 

Sorry r&b I must be under a blonde moment but I don't understand.

 

They can only get a charging order on your home if you have defaulted payment on the CCJ.

Do you mean they haven't enforced the CO?

 

Have a read of JOA's thread From post 260, if you haven't already,

Here it is http://www.consumeractiongroup.co.uk/forum/legal-issues/157069-court-claim-lloyds-tsb-13.html

Edited April 17, 2009 by questioning

[questioning]

No, no assignment, just a name change.

[questioning]

ok draft defence for the set aside:

CLAIM NUMBER: XXXXXXX

AT XXXXXXXX COUNTY COURT

BETWEEN

XXXXXXXX

 

 

CLAIMANT

 

 

r&b

 

 

 

DEFENDANT

 

[DEFENCE for Set Aside

 

pursuant to the Direction of District Judge xxxx

 

Dated xxApril 2009

1. It is not admitted that the Defendant signed an agreement with xxxxxx. The Precise terms and date of any such alleged agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement.

2. The Claimant is put to strict proof that they did indeed have staff working on Christmas Day 2001, in relation to this Agreement dated 25th December 2001 in the Particulars of Claim.

3. It is averred that if any agreement existed, that the agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the agreement is enforceable within the terms of the Act in that the alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit.

4. It is further averred that the alleged agreement is defective in that it is indeed an application form, a separate sheet of Terms and Conditions and a blank unrelated credit agreement.

5. Further and in the alternative if, which is not admitted, an enforceable agreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

6. The Defendant is not in possession of a Default Notice. It is not admitted that the Defendant was served with a Default Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

7. The Defendant is not in possession of a Termination Notice. It is not admitted that the Defendant was served with a Termination Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

8. It is denied that any documentation was attached to the original claim in breach of Civil Procedure Rules part 16 Practice Direction 7.3(1

9. Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law

10. It is averred that the Claimant has not fully conformed with my disclosure requests under Civil Procedure Rules 31.16 and 31.14 to which end I refer the court to my application for disclosure and subsequent order

11. In view of the above, it is denied that the Defendant is indebted to the Claimant as alleged or at all

 

Counterclaim

12. The Defendant seeks a declaration from the Court that the aforesaid agreement is unenforceable in that it does not contain the statutory particulars and is not enforceable

13. The Defendant seeks a declaration that the judgment be set aside.

 

Statement of Truth

 

I believe that the facts stated in this defence are trueI am the

 

Defendant.

 

Signed

 

r&b

 

date

 

does the counter claim look right? thanks r&b

 

I love the Christmas day reference and the way you've put it right up at the beginning of the defence, It casts doubt straight away,

I've seen a default notice posted that was issued on Christmas day,

[questioning]

Hi R&b,

Their letter says it is a 'copy' of DN not a reproduced dN from their records, so I can't see how they can get out of their error, although will try.

 

I had a notice of assignment sent to me. On the top of it they had written "representation of the NOA sent to me on XXXXX"

So in that case if their was an error they could quite easily say it was a typo. In your case I don't think they could get away with it if you argue the point.

[questioning]

Hi,

I sent u an email, don't know if u read it though.

I was just telling u in case u didn't realise that Mon is a bank holiday.

[questioning]

can you not fax it R&b?

Edited May 22, 2009 by questioning

[questioning]

Really sorry bout that,

Try ringing the court to ask if you can file it on Tuesday as BH on monday,