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Lloyds TSB Platinum Card - Court Claim


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But surely no contract has been formed until the exact point in time that the document was countersigned (and I would presume that would have to be the actual document with my actual signature on it, and not some unreadable copy), so everything that had happened prior to that point in time was without agreement or contract?

 

Correct & I think this point has been argued before eg. if there was no agreement in place, no interest should have been charged. However how far you would get in court with this argument would remain to be seen. :rolleyes:

Within the Order for Costs they list the Court Fees they have paid which I understand I may be ordered to pay if I should loose.

 

I have long term health problems and am in receipt of Income Support and as a consequence of this I am exempt from court fees, would this exemption also apply to any court fees claimed in this event?

 

I think it is only your own fees that are exempt although I stand to be corrected..

 

FG

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Within the Order for Costs they list the Court Fees they have paid which I understand I may be ordered to pay if I should loose.

 

I have long term health problems and am in receipt of Income Support and as a consequence of this I am exempt from court fees, would this exemption also apply to any court fees claimed in this event?

 

I think it is only your own fees that are exempt although I stand to be corrected..

 

If I should loose (and I will be gobsmacked if I do) will these fees be added to the amount they are claiming or ordered to be paid separately? As there is no way I could pay either amount, I have no money and my sole source of income is Income Support. So I assume the judge will look at my financial circumstance and order me to pay a very small token amount each month, am I correct in this, and do I need to make the court and/or claimant aware of this pre-trial or will I need to prepare something for the day?

 

Also, should I loose and request that the judgement to go to appeal, and I employ a Barrister to fight the next round (hopefully on Legal Aid or on a Conditional Fee basis) would the amounts awarded in the initial judgement be frozen until the outcome of the appeal?

 

Loads of questions I know, but I have read the forums extensively and cannot find a definitive answer to those asked.

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If you lose iOiO, you should make your I&E very clear to the DJ - be prepared with a list. You don't need to provide proof of it, just list all your income & outgoings not forgetting things like new clothes, repairs, transport - everything!

 

If you need to appeal, it must be done within a limited period of time but once it is submitted, the costs in the order will be stayed pending the appeal process. BTW IMO you are unlikely to get legal aid for a barrister but you may be able to try pro bono.

 

You DEFINITELY do not need to make the other side aware of your financial situation at this stage. I would have hoped you would have done that before they started legal action i.e. don't even bother taking me to court, you'll get nowt but if you haven't, too late now.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Thanks again for coming up trumps FG

 

I did inform them of my of my situation some time back and asked them if they could freeze interest payments etc but they continued to pile it on and harass me for ever increasing payments I couldnt possibly make.

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I have been going through the trail bundle and noticed within it a letter they sent to the court which is highly relevant to how I presume they will proceed with their argument, I will scan it in shortly, interestingly I note that this document was missing from the list they disclosed to me, however as I say its in the Trial Bundle which was not received until after the trial..... sneaky tricks indeed!

 

Back in a mo.

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I have been going through the trail bundle and noticed within it a letter they sent to the court which is highly relevant to how I presume they will proceed with their argument, I will scan it in shortly, interestingly I note that this document was missing from the list they disclosed to me, however as I say its in the Trial Bundle which was not received until after the trial..... sneaky tricks indeed!

 

Back in a mo.

 

Hi ioio do watch these people they are indeed very sneeky:-| good luck with your battles:)

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The order they are talking about is this, which was filed with my AQ....

 

Section F – Proposed Directions

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as non-production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment -

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

Therefore it stands to reason that such documents must be disclosed before this case can progress any further.

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (XXXXX date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a fully legible verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) The executed regulated Consumer Credit Agreement made between the defendant and XXXXXXXXXXXXXXXXX under the account numbered XXXXXXXXXXXX together with any Terms and Conditions that applied to it, the original document must be brought to the hearing.

 

(b) The Default Notice together with proof of service.

 

© The Formal Demand together with proof of service

 

(d) A full and complete statement of account including all payments made and

charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

(e) Any other documents on which the claimant will rely.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence in response to the documents supplied by the claimant by 4:00pm on (XXXX date) (being a date 6 weeks from the date of the making of the case management directions).

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As far as I can see, the draft directions you were seeking were just that - directions & I don't see an application for a disclosure order. Therefore SCM are talking bs on that one; indeed disclosure is paramount to the CPR in the county court, small claims or fast track.

 

As regards producing original docs. note the folowing taken from a quote on Cy's thread:

55. The Claimant would be aware of the fact that they would need to be able to produce a copy of the original Agreement should they ever need to take legal action to enforce the Agreement. The Claimant would also need to be able to produce a true copy of the properly executed Regulated Agreement upon request pursuant to Section 78 (1) Consumer Credit Act 1974. It therefore stands to reason that the Claimant must surely hold such document, and yet has either chosen not to disclose it despite many requests, or has lost this document, or never had it in the first place.

 

56. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b)). As a Running Credit Agreement remains active until the Agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the Agreement/application) would be "live" until the account is paid, or terminated. Thus, the full file should be retained for at least six years after that.

 

57. This interpretation fits in with Inland Revenue legislation that requires prime documents are to be retained for a period of six years, after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5) (a) and (5) (b)."

 

58. Finally, key documents and Application Forms must also be kept until 5 years after that business relationship has ended, if the Claimant is to comply with the requirements of The Money Laundering Regulations 1993, 2003 and 2007.

They will probably try to introduce hearsay evidence via a witness statement from Joe Bloggs at the bank stating that the copies they have are true copies of the originals. If they do, that can be countermanded but cross that bridge when necessary. For the moment, good to see you're paying attention to everything in that bundle.

 

Don't think the link for cy's thread is working. Try again:

http://www.consumeractiongroup.co.uk/forum/legal-issues/190057-oh-bls-ltsb-15.html

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Thanks again FG

 

This is a copy of the Witness Statement I submitted, it contains most of the paragraphs quoted above and indeed I pinched some from just about every WS on CAG and even includes a little work of my own, but you will see it is heavily biased towards the excellent help you gave Cymru.

 

Claim no xxxxxxxxxxxx

 

 

 

In the XXXXXXXXXX County Court

 

LLOYDS TSB BANK plc

Claimant

 

 

And

 

 

xxxxxxxxxxxxxxxxxxxx

Defendant

 

 

 

 

 

DEFENDANTS WITNESS STATEMENT

 

 

I, xxxxxxxxxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx will say as follows:-

 

1. I am the Defendant is this action and make the following statement as my Witness Statement to the claim made by LTSB.

 

2. I am a Litigant in Person.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and Lloyds TSB, secondly that such an agreement complied with the requirements of the Consumer Credit Act 1974 (“the Act”) (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter. Thirdly it must establish that Lloyds TSB complied with all of the provisions of The Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Finally it must establish that the sums claimed are lawfully owing both at the date of commencing proceedings and at all other times.

 

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

6. It is accepted that I applied for a credit card with Lloyds TSB plc on xxxxxx and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists.

 

7. There is no complicated issue of law. The common law relating to the Consumer Credit Act is settled law since 1974. There are no complex issues of interpretation; the Claimant has no compliant Consumer Credit Agreement in relation to the account number MMMMMMMMM (a Mastercard account) upon which the claim is pleaded. This was admitted in a letter from the Claimant dated XXXXXXXXXX [Exhibit 001] this letter was received in response to a letter I sent them dated XXXXXXXX [Exhibit 002] requesting a copy of the aforesaid agreement after I had discovered it to be missing from the information provided following an earlier Data Subject Access Request pursuant to the Data Protection Act 1998. In their response they stated “We have contacted our Credit Card division and requested they check their records again for any data held under Platinum Credit card number MMMMMMMM, they have confirmed nothing found”, for the Claimant to have a legitimate right of action they must hold a Credit Agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court.

 

8. Additionally I would remind the court that CPR 16 7.3 states:-

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).

 

9. In fact insofar as to the requirements for the retention of original key documents, according to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b). As a credit card agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

This interpretation concurs with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21)

Furthermore it is a requirement of The Money Laundering Regulations 1993, 2003 and 2007 that key documents/application forms etc must be kept until 5 years after that business relationship has ended.

 

10. The Claimant is therefore put to strict proof that such an agreement relating to the account being pleaded exists and to produce the original document at the hearing.

 

11. Further to the case; on XXXXXX [Exhibit 003] via Special Delivery and pursuant to Civil Procedure Rule 31.14 I requested the disclosure of information from the Claimant's Solicitors which was vital to the preparation of a fully particularised defence in this case. The information requested documents referred to in the Claimants Particulars of Claim [Exhibit 004], and amounted to copies of the Credit Agreement relating to account number MMMMMMMM (a Mastercard account), and the Default Notice and the Formal Demand mentioned in the Claimants Particulars of Claim.

 

12. On XXXXXXX [Exhibit 005] the Claimants Solicitors acknowledged receipt of my letter of XXXXXXXXX [Exhibit 003] but totally ignored my request for the documentation mentioned in paragraph 11 above. They therefore failed to comply with their duties to supply documentation requested pursuant to CPR 31.14 within the requisite 7 days of receiving my request in writing. This is a clear abuse of the Civil Procedure Rules & in my opinion a deliberate attempt at the time to frustrate my ability to produce a conclusive and comprehensive defence to this claim.

 

13. The Claimants Solicitors wrote to me on XXXXXXXX [Exhibit 006] following the submission of my initial defence (which because of the lack of information disclosed had to take the form of an embarrassed defence), enclosed with this letter was a bundle containing mostly copy statements and a largely illegible copy of what looks like an Application Form [Exhibit 007] and some allegedly associated terms and conditions [Exhibit 008], closer examination revealed however that the Application Form was in fact for a totally different Visa account numbered VVVVVVVVVV

 

14. As mentioned, the document does not relate to the account being pleaded, I do however note on examining the Application Form that the Claimant has produced that it has not been signed by Lloyds TSB. I also note a key clause in section 5 of the Application Form which states “If your application is accepted by our signature and we send you a card, then this will form the agreement made between you, the Principal Cardholder, and us Lloyds TSB Bank plc…” This document has therefore not been fully executed, and as a direct consequence no valid contract or agreement has been formed.

 

15. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible which is clearly not the case with this document.

 

16. Although most of the document is largely illegible, it clearly states that this document is an 'Application Form'. It is denied that the ‘Application Form’ produced by the Claimant is an Agreement within the terms of the Act.

 

17. Additionally, under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an agreement is to be enforced by the courts.

 

18. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

19. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and 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.

 

Errors in Prescribed Terms

20. Both statute and case law agree that there can be no error or omission, no matter how small, in the prescribed terms of a credit agreement, that such errors bar the court from making any enforcement order, that Parliament when enacting the Consumer Credit Act 1974 and subsequent Regulations intended to place a heavy burden of strict liability on creditors to ensure that they produced documentation free from any and all errors and omissions, and to provide debtors with the highest level of protection possible.

 

21. Under S.61 & S127 of the CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as applied by the Court of Appeal and the House of Lords such an error or omission precludes the court from making an enforcement Order and therefore the only course of action available is to strike out the Claimants claim.

 

22. So there should be no misunderstanding, it is noted that the agreement referred to by the Claimant would have commenced prior to the inception of the Consumer Credit Act 2006. It is therefore regulated by the Consumer Credit Act 1974 s127 as Schedule 3, S11 of the Consumer Credit Act 2006 prevents S15 repealing this clause.

 

23. The court’s attention is also drawn to the authority of the House of Lords in Wilson-v- First County Trust [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced by the court.

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance”.

 

24. 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 - the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

 

"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."

 

25. It is therefore submitted that the document the Claimant has produced as a Credit Agreement falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in many areas & has not been fully executed. The Claimant is therefore put to strict proof that a compliant document exists.

 

26. If the claimant is in disagreement with the points made above in relation to an enforceable agreement, then it is respectfully requested that the claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553. Should the claimant be unable to produce the original agreement or a legible copy of, signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the “agreement” supplied by the claimant [Exhibit 007] unenforceable.

 

Terms and Conditions supplied

27. The Claimant Solicitors (SCM) have supplied a copy of the terms and conditions which they purport were on the reverse of the “agreement” and are a true copy of said conditions [Exhibit 008]. In their Particulars of Claim [Exhibit 004] SCM state that “Clause 7 of the agreement provided that the Claimant would furnish the Defendant with a monthly statement showing the balance currently due…” and that payments and interest upon the balance should be made in accordance with Clauses 5, 6 & 9 of the agreement. No such Clauses exist on the Terms and Conditions which have been supplied and said to form part of the agreement purportedly made at the time of inception.

 

28. This issue was raised in an Allocation Hearing on XXXXXXX and in an attempt to clarify this, on XXXXXXXXX [Exhibit 009] District Judge XXXXXXXX ordered amongst other things, “that the Claimant serve on the Defendant a typed copy of the terms and conditions and other matters endorsed on the first and reverse pages of the agreement signed by the defendant on XXXXXXXX together with a full copy of the booklet the Claimants state contain the detailed terms and conditions”.

 

29. I note on studying the booklet provided following the Court Order [Exhibit 010] that Clause 7 relates to payments and has no mention within it of the furnishing of monthly statements, and that Clause 5 relates to Credit Limits and Clause 9 to Default Charges, and as such not one of these Clauses bear any relation to that that is described in the Claimants Particulars of Claim.

 

30. I also note on examining the typed copy of the Terms and Conditions [Exhibit 011 page 3] obtained following the order by District Judge XXXXXXX that it states on the second line “These conditions are effective as at XXXXXXX” whereas the agreement was signed by myself on XXXXXXXX which obviously predates those Terms and Conditions.

 

31. I aver that the Terms and Conditions supplied as a separate document during my CPR 3.1 request or that the booklet supplied following the court order were not the actual conditions in force at the time the alleged agreement was signed & put the Claimant to strict proof of such.

 

32. Even if it were the case (which is denied) that the terms and conditions disclosed were the Terms purported to be those printed on the rear of the Application Form signed on XXXXXXXXX [Exhibit 007] then those Terms were not in effect at that point in time and thus no contract with regard to those Terms was ever made, this is further supported by the fact that the Application Form was never countersigned by the Claimant.

 

Lack of Default Notice or Formal Demand

33. In a letter from SCM dated XXXXXXX [Exhibit 006] they state that copies of the Default Notice or the Formal Demand had not been retained by the Bank, and furthermore they go on to say that “The issue of the Default Notice is clearly noted on the Banks records”. However the Claimant has failed to provide material evidence of the contents of either notice as required in paragraphs 34 & 35 below.

 

34. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

 

S87(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

35. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

36. It is denied that any Default Notice or Formal Demand in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA were ever received. I put the Claimant to strict proof that said documents in the prescribed format were ever posted or delivered to me.

 

37. Without prejudice to the above, I put the Claimant to strict proof that any Default Notice or Formal Demand sent was valid. For example, to be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

38. The 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Sums Claimed

39. 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.

 

40. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”).

 

41. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way; it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

Conclusion

42. The claimant has failed to supply a fully executed true copy of the agreement relating to the account pleaded in their Particulars of Claim [Exhibit 004], and has ignored my attempts to obtain such information under CPR 31.14

 

43. The “agreement” disclosed [Exhibit 007] is largely illegible and is not the agreement pleaded and is deficient in many aspects.

 

44. The terms and conditions disclosed [Exhibit 008] are largely illegible and do not correlate to the Claimants Particulars of Claim [Exhibit 004].

 

45. No details regarding the contents of the alleged Default Notice nor the Formal Demand cited in the Particulars of Claim have been disclosed.

 

46. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's claim should be struck out as an abuse of process as currently the Claimant has no legal right to pursue the claim.

 

47. Alternatively, I respectfully request a stay in proceedings until such time as the Claimant complies with my requests to produce a valid and fully legible copy of the Consumer Credit Agreement it is purported to apply to the account number under claim and also copies of the Default Notice and the Formal Demand mentioned in the Particulars of Claim, or until the court orders its compliance with the same.

 

48. In addition, if the Claimant cannot produce a Credit Agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) of the Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 of the Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the Claimants case accordingly.

 

49. Furthermore, since the account referred to in the particulars of claim is said to be regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies.

 

50. Notwithstanding the fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid Default Notice or Formal Demand has been served upon me and therefore the Claimant is precluded from taking this action.

 

51. In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

(2) The court may strike out a statement of case if it appears to the court -

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

52. If the court considers such action inappropriate, it is requested that the Court order the Claimant to produce the following documents at a hearing:

(a) an original credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983 for the account being pleaded.

(b) a copy of any Default Notice and any Formal Demand sent by the Claimant in respect of this account & the proof of mailing of such.

 

53. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

 

Statement of Truth

 

I xxxxxxxxxxxx believe the above statement to be true and factual to the best of my knowledge and is xxxxxxxx pages long.

 

 

 

Signed

 

 

 

 

 

 

 

Dated this XXth Day of XXXXXXXX 2009

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