MINT is cca enforcable?

[I've got no money]

I think that they're claiming that the form you signed was an application but that when they signed it that it became an agreement - that would explain the time gap BUT Christmas day is not very believable unless they say that they were working then...

[I've got no money]

I hadn't realised that you hadn't filed a defence - I think that if you have a look at

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm.html

 

which admittedly is an amended defence - if you take out all of the underlining and the bit that says amended and add in paragraphs that say that they haven't complied with your CPR requests and refer to your N244 AND also insert a paragraph saying that the agreement/t&c s weren't served with the the agreement you should have basically OK

 

You also need to take out anything that doesn't apply - such as the assignment stuff and to change the names to Mint and to take out the stuff that refers to Northampton

[I've got no money]

The thing tho is that you do tear them apart with what they've disclosed - if you look at the amended defence that I did you'll see that wherever they have disclosed something I have taken it apart...what I haven't done is put quoted all the law - you really don't need to do that.

 

As an example if the agreement they produce doesn't contain the prescribed terms - you don't have to quote chapter and verse what the law is it is enough to say that," if there is an agreement, which is not admitted, it is denied that such agreement is enforceable in that the document relied upon by the claimant does not contain particulars as to interest rate, repayments."..or whatever is wrong with it... "as required by Section whatever CCA 1974" Likewise if you haven't received a default notice you don't need to cite the law word for word - it is enough to say "The Defendant has never received a default notice. The Defendant does not admit being served with a default notice the claimant is put to strict proof of the service and content of any default notice" if you want to adopt a belt and braces approach you could go onto say that "in the abscence of the service of a default notice it is averred that any agreement in unenforceable"

 

Your defence needs to be a combination of an I don't know because I haven't had the documents type defence AND a defence that where you have had the documents identifies what's wrong with them.

 

Do you follow me

Edited April 19, 2009 by I've got no money

[I've got no money]

If you want to quote lots of law put it in a skeleton and send it in with the defence and send a copy to the other side

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm.html#post2113657

 

Have a look at my skeleton - if you prepare something like that - I haven't put lots of word for word law into mine but you can do - it also means that you've got all of your thoughts written down andf that you understand what you're arguing

[I've got no money]

Excellent - put them under a bit of pressure

[I've got no money]

When I first started posting on this site I knew lots about county procedure and how to draft pleadings, quite a bit about assignments and general contract BUT virtually nothing about consumer credit (I studied it 20 years ago and hadn't done any since)...

 

I have learned a phenomenal amount on this site...you'll find that the more that you post the more you learn. People are just so helpful

[I've got no money]

Too right - and generally - it seems to work

[I've got no money]

Thanks Q.

Ive received this letter thru this morning in reply to the 31.14 request for disclosure of docs pertaining to this set aside. its accompanied by the same appl form, separate terms (which i can prove beyond doubt) both of which i have posted b4. also is a credit agreement (blank and without a signature box?). im formulating the skeleton defence, so i guess i concentrate heavily on prescribed terms, "embodied"/"contained" and terms,etc in sect 61(a)&(b).

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any other ideas welcome.

 

You need to do a letter to the other side - acknowledge receipt of the docs and point out that the CPR 31.14 request was for the signed original agreement as that is the document referred to in the claim form. Likewise you require the original terms and conditions. Tell them that they have failed to comply with your CPR 31.14 request and that if it is not complied with in full by (give them 7 days) that an application will be made for an order and for costs

 

The objective is to either get the original or have them struck out for not supplying it.

 

In your defence you need to mention the fact that they have failed to comply with your cpr 31.14 request

[I've got no money]

ok draft defence for the set aside:

CLAIM NUMBER: XXXXXXX

AT XXXXXXXX COUNTY COURT

BETWEEN

XXXXXXXX

 

 

CLAIMANT

 

 

r&b

 

 

 

DEFENDANT

 

[DEFENCE AND COUNTERCLAIMfor 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

1. The Defendant repeats his defence set out above

2. 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 therefore unenforceable within the terms of the Consumer Credit Act 1974

 

 

Statement of Truth

 

I believe that the facts stated in this defence are true

I am the

 

Defendant.

 

Signed

 

r&b

 

date

 

does the counter claim look right? thanks r&b

 

Sounds fine by me mate - I've taken the liberty of making a few minor amendments which I've done in bold italics - I've also just double checked how to set counterclaims out and so I've numbered the CC 1 and 2. I've also taken out the bit about setting aside the judgment as that doesn't go in the defence.

 

Hope that's OK - but other than those really minor points it is excellent

Edited April 25, 2009 by I've got no money

[I've got no money]

As far as the skeleton goes - the most important thing is that you understand it and that it contains all the important info and the law - yours does - I think its' great

[I've got no money]

when filing an amended defence, am i right in thinking i have to file the whole defence again, exhibits, etc, with the amendments underlined?

 

any additions/thoughts on their latest efforts?

 

You don't file exhibits to a defence...

 

Yes - an amended defence you file the whole thing again - I personally always underline the amendments - technically I don't think that you have to any more - I do it out of habit.

 

I'll check the CPR

[I've got no money]

Practice Direction to CPR 17

 

"The amended statement of case and the court copy of it should be endorsed as follows:

(1) where the court’s permission was required:

Amended [Particulars of Claim or as may be] by Order of [Master ............][District Judge .............. or as may be] dated...............

 

 

(2) Where the court’s permission was not required:

Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated..................

 

 

2.2

 

The statement of case in its amended form need not show the original text. However, where the court thinks it desirable for both the original text and the amendments to be shown, the court may direct that the amendments should be shown either:

(1) by coloured amendments, either manuscript or computer generated, or

 

(2) by use of a numerical code in a monochrome computer generated document.

 

 

2.3

 

Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.

 

2.4

 

The order of colours to be used for successive amendments is: (1) red, (2) green, (3) violet and (4) yellow.

 

(For information about changes to parties see Part 19 and the practice direction which supplements it.)"

 

 

 

So on the basis of that Practice Direction you don't have underline

[I've got no money]

In terms of a defence - you don't need to file any exhibits with it - it is enough to assert something you don't need to give any evidence.

 

Say, for example, that the defence was that you had paid it off in full - you would simply say that on whatever the date was you paid £X which was in full payment of...

 

You wouldn't need to exhibit the receipt.

 

If you were going to argue a D/N was defective you would refer to it and say what was wrong with it but you wouldn't actually attach the D/N to the defence

[I've got no money]

I need to go through your thread properly but I haven't got the time at the moment - I'll make some time tomorrow and make some suggestions for amendment

[I've got no money]

I'm happy to help out but I haven't got any time - uni commitments - for another week

[I've got no money]

I'd say that it is a statutory scheme and that it is a pre-requisite to the issue of proceedings that a valid DN has to be served - failure to serve the DN invalidates the whole proceedings AND because the issue of Proceedings unlawfull terminates the agreement it is not possible to serve another DN

[I've got no money]

thanks IGNM, i think thats what x20 was saying but how do i tell a potentially ignorant of the fact judge that? if i quote that verbatum, to my mind the other side will merely state the Act and that as im relying on all other aspects within the Act for my defence and it being in black n white so to speak, the DJ could easily side against that argument. it doesnt seem watertight or am i just not grasping the point here?

 

Basically I think that you're trying to complicate it - the point is straightforward no DN - then the proceedings are invalid

 

Don't forget Woodchester

[I've got no money]

Well by Saturday this years Uni Schedule should be completed - the last assignment finished until we start back in late September...

[I've got no money]

There is a copy of Woodchester here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/171436-ccj-claim-form-received-5.html#post2184698

 

and have a look at this

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html#post1840188

[I've got no money]

Have a look at London North Securities Ltd v Meadows and Another [2005] EWCA Civ 956

 

Where you discover that you have a defence you can apply to set aside the judgment - as a Litigant in Person I can't see the court saying that you should have made a different form of application

[I've got no money]

I think that you have followed the correct procedure - if Judgment is set aside at that point the court would give you permission to withdraw any admissions.

 

Remind me - when is the hearing?

[I've got no money]

thanks Spam & IGNM appreciate ur efforts.

 

the hearing is on 23rd July, tomorrow week.

 

Best of luck for next Thursday