Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[robcag]

Hi Spam

 

 

The notification from HFC (19.5.09) with regards to the assignment was as a reply to my Subject Access Request.

 

 

So not strictly speaking a document which they had previously issued and which they were required to produce as a result of your SAR. It seems they produced it because of your request but had to put that date on it because their system probably didn't allow them to backdate it, or perhaps someone mistakenly 'forgot' to backdate it.

 

Cheers

Rob

[Spamalot]

Hi Spam

 

 

 

So not strictly speaking a document which they had previously issued and which they were required to produce as a result of your SAR. It seems they produced it because of your request but had to put that date on it because their system probably didn't allow them to backdate it, or perhaps someone mistakenly 'forgot' to backdate it.

 

Cheers

Rob

 

I think it's just a coinkidink. that they replied to my SAR almost a year after the alleged assignment to Phoenix...

 

19.5.09 is just the date of the letter informing me that they sold the account to Carval on 21st may 2008 otherwise they'd have written to me 2 days before it happened.... I never received any notification prior to that from HFC about them selling the account just the duff NOA from Marlin.

 

I did get a copy of a default as a result of SAR and the date had been changed to 13th March instead of 14th ( I have the original ) which may have snuck them in under the 14 days threshold but the amounts claimed are wrong any way so I'm just using that as back up to prove they like to doctor the documents.

 

Spam.

[jon888999]

Hi Spam, Your case is going the same way mine did. Just be careful if you own your own property because they tried to get a charging order on a set a side judgement in my case.

They really are devious and can't be trusted. As for altering documents if you've got proof, I'd complain to everybody including the Police and Channel 4. Also i'd have a good look and see if you can find any written misrepresentaions from them and complain about that too.

As for the company going into liquidation, that will be the easy way out for them as they are limited companies. Criminal Prosecution will be much better.

I think you should now try and convince them to discontinue as they almost certainly will in the end.

It's a mexican stand off now. Seeing who breaks first.

Take Care

Jon

[foolishgirl]

Hi spam

 

I am not decrying IGNM's defence in any way but I think your defence should try & follow the lines of your set aside more.

 

The following is a defence that I had on file & amended. It also needs the counterclaim drafting - see what you think...

 

1. I am the Defendant in this action & I am a Litigant in Person.

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method by which the Claimant calculated any outstanding sums due, the details of any default notices issued or any other matters necessary to substantiate the Claimant's claim.

 

b) A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served.

4. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

5. The Defendant admits that she received Notice of Assignments from both HFC & Marlin Financial Services. However the defendant believes that errors of fact may be contained within these Notices & notes that the assignment may therefore be rendered ineffectual in law. The court’s attention is drawn to the case of W F Harrison & Co Ltd v Burke and another [1956] 2 All ER 169.

The defendant therefore puts the Claimant to strict proof of their legal entitlement for their claim by requesting that the original Deed of Assignment is presented to the Court for inspection as it is otherwise impossible to establish the Claimant’s entitlement to legally pursue this claim.

 

6. In respect of the alleged agreement, on 1/04/09 the Defendant wrote to the Claimant requesting a copy of her Credit Agreement pursuant to S77/78 of the Consumer Credit Act 1974, followed by a further request on 06/04/09 under The Data Protection Act 1998. The Claimants replied to her requests by supplying a copy of an Application Form. This did not contain any prescribed terms that are defined by S60(1)&(2) of the Consumer Credit Act 1974 as the essential components of a regulated agreement under this Act.

 

7. On 30.4.09 the Defendant submitted a request under CPR31.14 for a copy of the agreement that the Claimant is relying upon in pursuit of this claim, giving the Claimant 7 days in which to respond. Further reminders of this request were sent to the Claimant on 11/05/09 & 19/05/09. To date the Claimant has not responded & the courts attention is drawn to the fact that without disclosure of the requested documentation the Defendant has not had the opportunity to assess if the documentation which the Claimant seems to be relying upon to bring this action actually contains the prescribed terms as required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

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

8. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in (7) above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore it is not enforceable by s127(3) of the same Act.

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.

9. 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’

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."

10. The Claimant is therefore put to strict proof that a compliant document exists.

 

11. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendants have had benefit of the monies and therefore the Defendants are liable, reference is made 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

’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 s65(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’

12. The Defendant neither admits nor denies receipt of a default notice(s) & puts the Claimant to strict proof of delivery of such. Section 87 (1) of CCA1974 states:

"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,

If the Claimant cannot provide material evidence that a default notice(s) was sent to the Defendant, this account has been unlawfully terminated.

13. The Claimant is also put to strict proof that any Default Notice sent to the Defendant was valid. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. 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).

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

14. A request was made for copies of default notice(s) under the Data Protection Act 1998 on 6.04.09 and CPR 31.14 on 30.04.09, 11.05.09 and 19.05.09. To date the Claimants have not supplied this documentation.

15. The claimant seeks to claim interest ‘at the rate persuant to the agreement namely £14.56 and continuing until judgement or sooner payment at the daily rate of £1.82 or in the alternative interest pursuant to Section 69 of the County Courts acts 1984; also interest at the rate pursuant to the Agreement from the judgment date until payment’. 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 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974

Conclusion

16. 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 has been served upon the Defendant and therefore the Claimant is precluded from taking such action.

 

17. 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.

18. 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.

(b) a copy of any default notice sent by the Claimant in respect of this account & the proof of mailing of such.

© the original Deed of Assignment showing the date, amount & parties named in the assignment of account from HFC to the Claimant.

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.

 

[Spamalot]

Hi FG,

 

That is a fantastic bit of work, I can't thank you enough...it's superb!

 

I do have a couple of teensy queries though..(probably my fault for not linking it on my tidy up post sorry )... one concerning the LBA.(No. 4)

I did receive a letter from Mortimer Clarke exactly a week before the claim form arrived asking for full payment of alleged debt within the next seven days or they would issue a claim...

 

The letter arrived on Sat 22.11.08 and the claim form arrived the following Sat 29.11.08. I'm assuming that was their LBA albeit that it came out of the blue as they were receiving regular substantial payments... so I'm assuming I won't be able to use that part of the defence?

 

Also..No 5 NOA's.... I didn't receive a NOA from HFC at the time of the assignment...I got it as a result of my SAR a couple of months ago.. would that make any difference to the wording of that part of the defence?

 

As I said... I am truly grateful for all the work you have put into this... I'm just speechless about the way perfect strangers have rallied round to assist... It's so heartwarming after all the bullying from the DCA's...

 

sorry ...gushing over..

 

Thanks again,

 

Spam.

[foolishgirl]

 

The letter arrived on Sat 22.11.08 and the claim form arrived the following Sat 29.11.08. I'm assuming that was their LBA albeit that it came out of the blue as they were receiving regular substantial payments... so I'm assuming I won't be able to use that part of the defence?

You could mention that it didn't give you time to pay but maybe that would be better left for a witness statement (if it gets that far)

Also..No 5 NOA's.... I didn't receive a NOA from HFC at the time of the assignment...I got it as a result of my SAR a couple of months ago.. would that make any difference to the wording of that part of the defence?

 

Yes, amend appropriately. As I said the defence I posted was basically pulled off from one of my files as an eg. so you mut amend it as you see fit. You know all the facts, I don't.

 

Thanks again,

 

YW

 

 

FG

[Spamalot]

Hi all,

 

Just to continue as I need to complete my defence/counterclaim..

 

6. Any wrongful charges, incorrectly applied interest etc. Also calculate how much you have paid under the CCJ.

 

Prior to HFC assigning the account there was a total of £154 in unlawful charges which dated back to 2003.

 

I paid Marlin £90.03 per month from July 2008 via my DMC and up until judgement which was 25th Feb 2009..(£720.24) I continued to pay the same amount per month under the judgement until 25th July 2009. (£450.13) (last payment before set aside).

 

If possible I would also like to claim damages as I have been declined 2 Basic bank accounts. (Nationwide & Co-op) and a job interview because of the reports they have put on my credit file... HFC & Marlin have been updating on the same alleged debt and there's also the CCJ.

 

Any help with regards to my counterclaim would be great,

 

Thank you,

 

Spam:)

[foolishgirl]

Hi spam

 

Have you received your AQ from the court yet? If not, download a copy from HMCS site & submit it with your defence. If you need help with it shout eg. you may want to include draft directions.

 

Re. counterclaim, think you would be pushing it to try & claim for sums paid before your CCJ but you should claim for anything else you can think of & if it goes to a hearing, make sure you submit all your costs 48 hours before to both court & claimant.

 

You should claim contractural interest on your charges - use the CAG spreadsheet - plus 8% on top. Work it all out on the spreadsheet & submit a copy with the defence.

 

Suggestions for counterclaim:

 

Counterclaim

 

1. The defendant claims the sum of £xxx representing the amount of unlawful charges that were applied to her account between xxx & xxx, plus contactural interest of £ xxxx, plus interest pursuant to section 69 County Court Act (1984) at a rate of 8.0% per annum from xxx to xxxx of £xxx and thereafter at a daily rate of £xx to date of judgment or sooner payment. Details of calculation attached.

 

2. The defendant claims the sum of £xxx being the amount paid to the claimant between xxx & xxx under a County Court Judgment order dated xxxx, set aside on xxxx plus interest pursuant to section 69 County Court Act (1984) at a rate of 8.0% per annum from xxx to xxxx of £xxx and thereafter at a daily rate of £xxx to date of judgment or sooner payment.

 

3. The defendant claims all court fees & charges in relation to the submissions & applications concerning the setting aside of the judgment of xxx & this defence, totalling £xxxx, plus interest pursuant to section 69 County Court Act (1984) at a rate of 8.0% per annum from xxx to xxxx of £xxx and thereafter at a daily rate of £xxx to date of judgment or sooner payment.

 

4. In the event that the court finds judgment in favour of the defendant, the defendant requests that the court order the claimant to remove all default markers from the credit records of the defendant forthwit

 

5. The defendant also requests that the court consider the claimant be ordered to pay the defendant a sum in compensation for the distress & material hardship the defendant has suffered in respect of such default markers being wrongfully applied to her records & the subsequent CCJ being made against her. The sum to be determined by the court.

 

 

I'll keep thinking...

[Spamalot]

Thanks again FG...

 

I will have a crack at doing the above but me and spreadsheets don't get on too well.. I'll see if I can get one of the daughters to give me a hand..

 

One query I have about the unlawful charges though... If part of my defence is the lack of agreement, would my asking for the reimbursment of charges to the account be an admission that the agreement exists??

 

Don't want to drop myself in it...

 

The other query is the AQ.. this defence is to be filed and served by the 16th. The judges directions were that the AQ should be sent out to me by 23rd... Is it best to wait for the court to send it out or easier to download it and do the 2 together??

 

Sorry to be a pain..

 

Spam.

[AndyOrch]

Thanks again FG...

 

I will have a crack at doing the above but me and spreadsheets don't get on too well.. I'll see if I can get one of the daughters to give me a hand..

 

One query I have about the unlawful charges though... If part of my defence is the lack of agreement, would my asking for the reimbursment of charges to the account be an admission that the agreement exists??

 

Would depend how you draft it Spam First, I always write(or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has!

 

Don't want to drop myself in it...

 

The other query is the AQ.. this defence is to be filed and served by the 16th. The judges directions were that the AQ should be sent out to me by 23rd... Is it best to wait for the court to send it out or easier to download it and do the 2 together?? Absolutly Spam never prempt A DJ

 

Sorry to be a pain..

 

Spam.

 

 

Regards

 

Andy

[Spamalot]

Thank you Andy,

 

I'll have a go at that too and post it up for you knowledgeble ones to have a look at before I get it sent off.

 

Spam.

[AndyOrch]

Thank you Andy,

 

I'll have a go at that too and post it up for you knowledgeble ones to have a look at before I get it sent off.

 

Spam.

 

No probs Spam, you have to be careful how you draft the Defence and Part 20 CC. The order was to set a side the CCJ so tread carfully with regards to its enforcability.Im sure you are aware tht this wil lbe a full defence and not mearly an holding defence,it will not be staight forward!!!

 

Regards

 

Andy

[Spamalot]

No probs Spam, you have to be careful how you draft the Defence and Part 20 CC. The order was to set a side the CCJ so tread carfully with regards to its enforcability.Im sure you are aware tht this wil lbe a full defence and not mearly an holding defence,it will not be staight forward!!!

 

Regards

 

Andy

 

Hi Andy,

 

Thanks again... I'm treading as carefully as possible... FG has set out what looks to be an excellent defence a few posts above and I'm just getting to the nitty gritty of the counterclaim.. I don't want to shoot myself in the foot now I've got this far!... Once I'm sure that I've got it all together I'll be asking more questions..and for it to be vetted..

 

I hope to have got it all together by the weekend and ready to send off in time for the deadline of the 16th..

 

It's a nerve racking business.

 

Spam.

[foolishgirl]

Just another thought too spam - you might want to get the agreement declared unenforceable under the counterclaim using andy's excellent phraseology of course

You know the sections to refer to in the CCA don't you?

[Spamalot]

Just another thought too spam - you might want to get the agreement declared unenforceable under the counterclaim using andy's excellent phraseology of course Excellent Idea FG.. don't want them coming back for a second go if I can help it!!

You know the sections to refer to in the CCA don't you?

 

Off the top of my head... No... but I'll have a scout round and see if I can find it..

 

Thanks again, ;-)

 

Spam.

[angel_1]

hiya all

 

wishing you lots of luck spamalot and already picked up some gems from the advice given

 

so am subbing to digest a lot more later

 

have a fun week all laters angel x

[foolishgirl]

If there is no agreement produced containing the prescribed terms the court is prevented from enforcing it - it's what you referred to in your defence. To get the court to declare it unenforceable in such circumstances comes under S142.

Edited September 7, 2009 by foolishgirl
typo

[Spamalot]

If there is no agreement produced containing the prescribed terms the court is prevented from enforcing it - it's what you referred to in your defence. To get the court to declare it unenforceable in such circumstances comes under S142.

 

Thank you.. you really are a diamond..

[AndyOrch]

If there is no agreement produced containing the prescribed terms the court is prevented from enforcing it - it's what you referred to in your defence. To get the court to declare it unenforceable in such circumstances comes under S142.

 

And request Judgement in your favour (if we are not jumping ahead too far!!)

 

 

Andy

[Spamalot]

And request Judgement in your favour (if we are not jumping ahead too far!!)

 

 

Andy

 

Wouldn't that be nice... ... another gem from Andy..

 

Keep 'em coming..

 

Spam.

[Spamalot]

Notice of discontinuance for whole claim received today.... What do I do Now???

[AndyOrch]

Notice of discontinuance for whole claim received today.... What do I do Now???

 

Well done Spam now work out your costs.Check with the Court to see if they have recieved it.

 

 

Delighted for you;)

 

Regards

 

Andy

[Spamalot]

Well done Spam now work out your costs.Check with the Court to see if they have recieved it. Ok, will do..

 

 

Delighted for you;) Thank you..

 

Regards

 

Andy

 

[foolishgirl]

Oh, excellent news spam!! I'm delighted for you :)

 

As Andy says, check with the court, don't trust 'em an inch.

 

Then get them to agree to remove the defaults from your credit file, mark the account satisfied & obtain an offer of compensation for the wrongful entries that have affected your credit rating or tell 'em you'll go for a set aside of the discontinuence, get a judgment in your favour & claim costs!!

 

If you need help with the letter, shout...

[AndyOrch]

You want to go for Judgement also Spam?

 

Andy