MINT is cca enforcable?

[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

[r&b]

brilliant IGNM thanks, so i put the N244 in on monday mng (nother £75x2) for each case.giving 7 days (i guess i shud mention my requirement due to the impending deadline, so the court can list it?). i have started one defence on my other thread below, but u think i shud shelve it and send your suggestion, which makes sense to get disclosure. you clearly know the lie of the land here but would the DJ look favourably on this course of action, given his directions of 21 days each to file draft defence or is the request perfectly valid in these circumstances? sorry if im bombarding with questions.

http://consumeractiongroup.co.uk/forums/showthread.php?p=2112682#post2112682

Edited April 19, 2009 by r&b
link added

[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

[r&b]

thats great IGNM, really appreciated.

[r&b]

sending this :

CPR 31.14 Request

Dear Sir

 

Re: xxxxxxxxbkv r&b, Case No:xxxxxxx

 

On xx March 2009 and xx March 2009, I wrote to your organization under CPR 31.16 in request of certain documents pertaining to the above case number in Reigate County Court.

I must inform you that I have received no reply to these requests.

I write to inform you that you may take this letter as confirmation that you may treat the aforementioned CPR31.16 requests as CPR31.14 requests. I believe this to be applicable as proceedings have now begun. In any event I still require, pursuant to CPR31, including but not limited to: a true copy of the agreement mentioned in the Particulars of Claim, a confirmation that what you consider to be a true copy of said agreement, is indeed a copy of a single document and not separate pages from different documents, a true copy of the Default Notice mentioned in the Particulars of Claim, including proof of service upon the Defendant, a true copy of the Termination Notice mentioned in the Particulars of Claim, with proof of service on the Defendant and a full breakdown, including any charges, as to how the figures are attained in the Particulars of Claim.

I confirm having applied to the Court for an Order to this effect.

 

I confirm that you have 7 days in which to comply, which I believe to be reasonable, with regard to the timescales imposed by the District Judge at the set aside hearing of 8th April 2009.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 7 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

yours faithfully

[r&b]

sent the 31.14 letter yest, N244 appl sent in this mng ordering disclosure compliance or set aside. given 7 days to comply.

[I've got no money]

Excellent - put them under a bit of pressure

[r&b]

oh good im glad u approve....

[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

[r&b]

its a bit like a colony of bees i think...few at the core, few more in attendance, a lot of workers, and if attacked...the swarm is not to be messed with.....

[I've got no money]

Too right - and generally - it seems to work

[r&b]

as mint are part of RBS, does there need to be any assignment within the organisation i.e from rbs advanta (original card) to mint, or is it simply a name change, being that the main lender is the same? if so, should they therefore, have a NOA?

[questioning]

No, no assignment, just a name change.

[r&b]

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).

src="http://i615.photobucket.com/albums/tt231/robntanya/RBS3114REPLY.jpg" border="0" alt="Photobucket">

any other ideas welcome.

[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).

src="http://i615.photobucket.com/albums/tt231/robntanya/RBS3114REPLY.jpg" border="0" alt="Photobucket">

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

[r&b]

ok IGNM thanks, Ive already submitted a N244 to that effect (that it be set aside on non compliance), which was sitting on the DJs desk on friday appntly and ill find out his directions on monday hopefully, which incidentally is the deadline for their compliance. its the third time ive had this in answer to CA rqst(CCA/SAR/31.14) so i very very much doubt they have an original especially given the crap in the letter about whats in the sig box on the application form so you are bound by the terms on the separate sheet (not according to my skeleton im not lol). i ll post up my defence and skeleton in a sht while for critical examination which is due on tuesday.

[r&b]

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

Edited April 25, 2009 by r&b

[r&b]

and the skeleton:

CLAIM NO: xxxxxxxx

xxxxxxx COUNTY COURT

BETWEENxxxxxxx

 

 

 

CLAIMANT

and

xxxxxxxx

 

 

DEFENDANT

Skeleton Argument in support of Defence:

 

 

 

1. The Defendant asks the court to consider the following points of this Skeleton Argument in support of the Defence to set aside submitted in this case.

2. The Claimant has provided the Defendant with some documentation on which the Claimant enforced a judgment.

3. In order to prove its’ claim the Claimant should have established a number of matters. Firstly that there was an original agreement between themselves and the Defendant, secondly that such an agreement complied with the requirements of The Consumer Credit Act 1974 (the Act) and all consequential regulations within the Act, both at the date of the original agreement and at all times subsequently

4. The Defendant does not accept that this documentation alleged by the Claimant to be the Agreement, conformed to the regulations of the the Act in that

i) The Claimant has presented the Agreement (exhibit A1). This Agreement is in the form of an application form and a set of Terms and Conditions and a copy of a blank Credit Agreement. The Defendant refers the court to exhibit A2, which was a reply to a Subject Access Request made by the Defendant on 15th February 2009 and received on 26th March 2009. I refer the court to the last item in this pack, namely a copy of the Mint terms and conditions. The court will see that the Mint terms and conditions match exactly those attached to the application form from RBS Advanta. This being so, they cannot possibly be anything to do with the original document

ii) Further, the Key Information (top right hand corner of the aforementioned document) stated in the terms and conditions referred to in point i), in particular, the cost of “If you fail to pay the minimum payment on time” is stated as £12 on the terms and conditions. The court will be aware that this level of charges was not advised by the Office of Fair Trading until after 31st May 2006. In which case may I draw the courts attention to exhibit A3, copies of a statement of the account from xxxx in a letter dated xx March 2009. In particular, the entry dated xx/xx/xx -LATE PAYMENT FEE-£20, this is clearly incongruent with the charges outlined in the terms and conditions supposedly connected to this agreement

iii) With reference to point i), the Claimant avers in the accompanying letter that “your application constitutes your signed credit agreement.” further, “Therefore the accompanying terms and conditions make up the agreement in entirety and form your credit agreement. There is no evidence to suggest this is unenforceable

iv) The Defendant avers that the Claimant has misunderstood the Act as, in contrast, Section 61(a) of the Act, clearly states that

“61.

(1 A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

(c)the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

Should there be any confusion as to the meanings of the emboldened terminology(in (a) itself containing, in (b) embodies) in the above sections of the Act, Sir Roy Goode QC, says of section 61

“By Para (b) the document must embody all the express terms of the agreement. The word ‘embody’ in contrast to ‘contain’ in Para (a) means that the document need not set out all the terms itself, but may refer to another document setting out the terms: see CCA 1974, s 189 (4). It appears, however, that the other document must be expressly referred to: an implication, however clear, would not suffice

For clarity, section 61(a) requires all the ‘prescribed terms’ (s.60 CCA1974/ Sch 6 of the Consumer Credit (Agreements) Regulations 1983) be contained within the agreement. Section (b) which refers to the document embodying “all the terms of the agreement” refers to all other information not contained in the regulations (contact information, company policy regarding the debt, etc)

The document produced by the Claimant is further rendered unenforceable, by want of compliance with section 61(1)(a) of the Consumer Credit Act in that it must contain all of the “Prescribed terms”. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest. Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements renders any agreement unenforceable

To outline Prescribed Terms

A) Amount of credit:- A term stating the amount of credit

B) Repayments:- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

1) Number of repayments

2) Amount of repayments

3) Frequency and timing of repayments

4) Dates of repayments

5) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C) Rate of interest:- A term stating the rate of interest to be applied to the credit issued under the agreement

D) Credit limit:- This may be a term or the manner in which it will be determined or that there is no credit limit

vi)In addition there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the agreement and not in a separate document.

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

Indeed, Francis Bennion, draftsman of the Act, states

Consumer Credit Act 1974 s 127(3)[/font]

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed."

167 Justice of the Peace (2003) 773

5. The Defendant submits that the Claimant has failed to satisfy all of the matters referred to in paragraph three above. In such eventuality the absence of a written agreement is fatal and consequently as the alleged agreement was entered into before the 6th April 2007 the terms of S127 (3) Consumer Credit Act 1974) apply and render it unenforceable

6. The Claimant has failed to produce a copy of the original agreement. It has produced a document headed “ Credit Agreement Regulated by the Consumer Credit Act 1974” which in the course of its’ text, refers to “please complete your application”, in which vein the document continues in its form and content. There is no evidence of any agreement. This document cannot both be an application and an agreement. Under the terms of the contra proferentum rule any ambiguity should be construed against the party that seeks to rely upon it. Here the document was not drafted by the Defendant and it is the Claimant who seeks to rely upon it as being an agreement on which the debt was enforced. Consequently, it is submitted that the document should be construed as not being an agreement at all.

7. If, which is denied, the document signed by the Defendant was the agreement, the Defendant avers that he was not provided with a copy of it in accordance with sec.62 Consumer Credit Act 1974 either at the point of signature or at any time thereafter.

8. Further, there has been a failure to comply with the terms of Section 85(1) of the Act in that no additional copy of any executed agreements or other documents was ever provided to the defendant thereby rendering the alleged agreement unenforceable.

9. The Defendant submits that the Claimant failed to produce and serve a valid Default Notice in the prescribed format, proven as correctly served on the Defendant, pursuant to sec. 87/88/89 of the Act

10. If there was a valid Default Notice served, which is denied,the Default Notice must adhere the prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

11. 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 an 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

12. The Defendant submits that the Claimant has failed to produce a valid Termination Notice with proof that it was correctly served on the Defendant, pursuant to sec. 98 of the Act

13. The Defendant submits that the Claimant failed to attach the relevant documents to the Particulars of Claim pursuant to CPR Practice Direction 7.3(1) which states that:

“ Where a claim is based upon written agreement 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.

14. The Claimant has also disclosed copy statements, however these statements have an opening balance of £xxxxx. They do not show how that earlier amount has been calculated. Further the statements show “Late fees”, for which there would appear to be no contractual basis. Consequently those fees are unlawful. Further the Defendant has no means of ascertaining whether the earlier sums validly accrued.

15. In any event the statements also show a varying monthly interest rate. There is no evidence that if there was an enforceable agreement, which is not admitted, it was contractually permissible to charge these sums

16. The Defendant denies that the Claimant is able to claim the interest in the particulars of claim under the County Courts Act 1984 S69 as the purported contract was a regulated agreement. The alleged agreement is regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

17. The Defendant avers that the date of the agreement in the particulars of claim, namely 25th December 2001, could not possibly have been a working day for Royal Bank of Scotland in this particular department and therefore renders the agreement unenforceable

18. The Defendant has on numerous occasions, endeavoured to attain the relevant documentation from the Claimant. Initially, a Consumer Credit Agreement request on xx December 2008, followed by a Subject Access Request on xx February, a CPR 31.16 request on xx March 2009 followed on xx March by a reminder as to the same. Finally a CPR31.14 request on xx April 2009 and accompanying application for disclosure or set aside made to this court on xx April 2009(see exhibit A4). None of aforementioned has produced the true, valid copies of the relevant documentation that I require

19 Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in sec. 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

20. In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable

21. For the reasons outlined above the Court is invited to set aside this judgment and to order that the Claimant pay the

Defendants Costs.

 

I believe that the facts stated in this skeleton argument are true

 

SIGNED

 

r&b

 

dated

Edited April 25, 2009 by r&b

[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

[r&b]

IGNM, thanks very much indeed really appreciated.

[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

[r&b]

thanks, your direction has been invaluable. i understand it all (he says). i was very aware of taking all the stuff verbatum and not having a scooby doo what it meant, which is why its a lot more layman than urs lol. but thanks again...i ll be back with the other one on the other thread later (or tom possibly) if u wudnt mind casting an eye as well

cheers r&b

[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,

[r&b]

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

Hi thanks Q, lets hope the judge hasnt eh? lol