help PLEASE for Mint CCJ claim

[anxious123]

Hi, If anyone could help me I would be extremely grateful. The basics are that my partner has a number of agreements for reduced monthly payments to his creditors after suddenly being made redundant (without payout) last year and struggling to find regular freelance work during a recession. Some months he hardly receives any wages. Out of the blue Mint issued him with a claim form for a CCJ for a loan of nearly £9,000. They had told him they were passing the debt to an external collection agency but mentioned nothing about legal action. Are they now acting too harshly and unfairly? We have replied to the court with the acknowledgement letter saying he intends to defend the claim and have sent the sample letter asking for the agreement and all the other information about the account. But it is nearing the end of the second 14 day period and nothing has been received. Should I start drafting the embarassment defence? From what I've seen the sample embarassment letter is very very complicated and I really, really need advice. Can I send such complex legal information if neither me nor my partner fully understand it? I really don't want a CCJ which will tie us down for six years and make it impossible for us to get out of current difficulties. A solicitor for the bank mentioned by telephone something about securing the money on the property? Can they threaten us with that?

[citizenB]

Hi, I am not able to answer your questions.. but I will try and find someone who can.

 

If you havent received any documents then you will need to put in an embarrassed defence and explain this.

 

What are your timescales please ?

[creditcardmug]

Hi, first of all can you tell the date on the claim form, so we know how long you have to file the defence?

 

Also can you type up the Particulars of Claim, leave out anything which could identify you

 

Was it issued in Northampton court/

[42man]

Have you issued a CPR ? (Civil Procedure Rules) letter ? - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

What are the particulars of the claim ?

[anxious123]

Hi, we're checking with the court now to get an actual date. I think we really need to have something to them by early next week. No, it's not Northampton court. I will get my partner to go through and send you a few details about the claim. Thanks very much!

[anxious123]

Hi, actually it doesn't seem as urgent as we thought. We called the court and they say the date of service was March 23, the acknowledgment was received on March 30, and the defence needs to be in by April 18. I'm not sure what information you need but the claim form says:

 

"The claimant's claim is for monies due under the Consumer Credit Agreement (then gives a no) between the claimant and the defendant, notice of default having been sent to the defendant on 15/1/08 full particulars of which have been delivered to the defendant and the claimant claims the sum of £8821.72"

 

We can't find any default notice dated 15/1/08 so I'm not sure if we received it. I have been told by another bank (Egg) in the past that a default notice is just a matter of procedure and that we should ignore it so I may not have realised the significance of it at the time.

 

My partner cannot remember when he took the loan out but I think it was possibly in 2006, although we have no paperwork about it.

 

The letters we were able to find were one dated 15/12/08 which is some kind of notice and another dated 23/12/08 which is a notice to terminate. My partner has been paying reduced payments to Mint since about February 2008, and we wrote to Mint along with his other creditors in November 2008, with a new statement of means and schedule of creditors, after we discovered he could not keep up even with the reduced payments. My partner was made redundant in June 2008 and has been working on a freelance basis earning sometimes a bit of money, and sometimes hardly anything per month. His other creditors seem to have been more understanding and he owes in total around £40,000. We're also worried that if Mint were to be successful in their claim how could the other creditors react to this?

 

I try to organise financial things but I work very long hours and this usually has to be done at weekends. I spoke to someone at Mint (who telephoned us in response to our Nov 2008 letter) on my partner's behalf a couple of months ago. The man told me to keep paying the amount we had offered, and not to worry but Mint would pass the debt to an external agency, who would just collect the money instead. Court action wasn't mentioned.

 

The first I knew about the CCJ claim was on March 16 when my partner handed me a letter from Spratt Endicott solicitors which had been sent a few days before. It wasn't clear what they were asking, so I telephoned them and was told Mint wanted to secure the money on the house. I was shocked as I had no idea they could do this and so I told them I needed to seek advice. The woman then told me a CCJ claim had been issued and that it was in the post, and I think it arrived the following day.

 

My partner is just trying to scan the few letters we have in case they help. Should I post them but black out any personal information?

[42man]

Have a good read of this letter, (YOU WILL NEED TO EDIT IT) then send it recorded delivery to the opposing solicitors.....and have a read of the link in post number 4 above.....

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the default notice*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 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 14 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.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

[anxious123]

Thanks 42man, yes we did send a civil procedure rules letter, although it was not as detailed as yours. I used another template posted on the forum. However, I'll read your letter and the link again as I'm trying to take in all the legal information!

[creditcardmug]

Hi again, if that is all it says in the Particulars of Claim, then it is very poorly written, i take it it wasn't served with a copy of the agreement? (it should have been), that's two breaches of the CPR so far.

 

Send the (edited) letter above by 42man

 

Suggest you send your defence by SD on the 15th april.

 

I will sort out a defence over the weekend (bump the thread to remind me)

Who is the claimant, as shown on the front of the claim?

 

This is not that old, 2006, so they MAY produce an enforceable agreement, but we will press on and see how this pans out.

[anxious123]

Thanks, no we haven't received any copy of the original agreement. The particulars of the claim is just the information on the front of the claim form I take it? It's the only information we've received. The claimant is the Royal Bank of Scotland T/A Mint. I will edit the letter by 42man, I think I understand it now after reading the full thread about it. So just checking, I'm okay to send this even though we sent the earlier request for info under CPR18 after we'd received the claim form?

[anxious123]

The notice we received on 15/12/08 by the way was a notice to say we were behind with sums payable under the loan agreement (since we were paying the reduced amount per month this is obviously something they and us were both aware of)

[anxious123]

Thanks to both of you again so much by the way for helping me. It already feels so much better to be doing something and to be pointed in the right direction of what to do next:)

[creditcardmug]

Yes its still ok to send the letter, send by recorded, dont sign it just type your name.

 

If you had a default notice it would have been clearly headed DEFAULT NOTICE.

[anxious123]

Hi, thanks for that, will sort out the letter today. I don't remember seeing a default notice, so I'm not sure if we were sent it. Thanks.

[citizenB]

Hi, thanks for that, will sort out the letter today. I don't remember seeing a default notice, so I'm not sure if we were sent it. Thanks.

 

 

They should definitely have sent you one before sending you the termination notice

[anxious123]

In that case it looks as if I haven't seen it. We don't have it now. Also we never received Full Particulars as stated on the Claim Form. The CPR 31 Request letter has been sent anyway. Do you need to know anything else to think about how we draft the defence? One odd thing is that the letter sent by the solicitors before the claim form had a Final charging order for someone else attached to it. I was told this was a "computer mistake". Thanks again:)

[citizenB]

In that case it looks as if I haven't seen it. We don't have it now. Also we never received Full Particulars as stated on the Claim Form. The CPR 31 Request letter has been sent anyway. Do you need to know anything else to think about how we draft the defence? One odd thing is that the letter sent by the solicitors before the claim form had a Final charging order for someone else attached to it. I was told this was a "computer mistake". Thanks again:)

 

 

Hmmm, I would send that Final Charging order to the Information Commissioners office, with a letter advising how you came by it. I would be very worried that their Computer made this error again Definitely a Data Protection breach. I would also keep a copy for myself perhaps it could be useful in your defence somewhere.

[creditcardmug]

Just posting this for reference

 

"The claimant's claim is for monies due under the Consumer Credit Agreement (then gives a no) between the claimant and the defendant, notice of default having been sent to the defendant on 15/1/08 full particulars of which have been delivered to the defendant and the claimant claims the sum of £8821.72"

[creditcardmug]

Hi,

Im working on your defence, do you know what date you signed this credit card agreement, even approximately?

[creditcardmug]

Have a read of this, let me know if theres anything you dont understand about it,

 

 

 

In the xxxxxxxxxxxxx County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants 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: -

 

4. The claimants particulars of claim are very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16.

 

5. The claimant has issued proceedings in the xxxxxxxxxxxx County Court therefore according to practice direction 16 Para 7.3

 

7.3 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

 

6. The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction

 

7. Further more the claimant offers no particulars in relation to how the sums claimant are calculated and no statements are attached with the claim in support of the figures

 

8. 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 attached to the claim form.

 

9. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

10. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

11. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed 10th April 2009

 

11) The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

12. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

13. On DATE I wrote to the claimant requesting information pursuant to CPR 18 to date the claimant has failed to respond to my request

 

14. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was 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

 

 

15. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [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

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. 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

 

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

"[11] 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."

 

17. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

18. Notwithstanding points 14 and 15, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

19. The claimant is therefore put to strict proof that such a compliant document exists

 

 

20. 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 ss 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;"

 

The Need for a Default notice

 

21. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

22. Notwithstanding point 21, I put the claimant to strict proof that any default notice sent to me was valid. I note that 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)

 

23. 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)

 

 

Conclusion

 

24. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

25. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

26. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[anxious123]

Wow thank you creditcardmug that is amazing. Thank you so much for writing this out for us. I have read and I think I understand what the defence means. However, it now seems we have another problem. A credit agreement arrived in the post today and I'm not sure if it's valid or not. It is a photocopy of an agreement which includes a ticked box, but no signature by my partner. Is that allowed? He can't remember how the agreement was made but thinks it much more likely to have been by telephone than over the internet. If that is the case, wouldn't they have had to send a document for him to sign? The other problem is the date on the final photocopied page which is May 2007. It sounds too recent to me, although we can't currently think of a way of checking this. My partner now has a different bank account so its not possible to check any statements. If it is right, is this a problem? It is obviously after the 2006 Act which you state in the defence. I'm sorry it's taken me so long to reply and thank you. I never received an email and so hadn't realised I'd missed a posting. We still haven't received a copy of the default notice or full particulars as mentioned in the particulars of claim by the way...Thanks again for your help :o

[anxious123]

I've just tried to attach the ticked page from the agreement. Hope it works ....

[creditcardmug]

s15 Consumer Credit act came into force 6th April 2007, so if the agreement really does date from May 07 you have a problem.

 

Now the image above is too small to read (try uploading to photobucket), but doesn't look much like a credit agreement to me (what are those two black boxes), if you have ever sent them anything with your signature on they may have pasted it onto this?

 

When it gets to the next stage, AQs, you will require them to provide the original agreement, and full documented history of account transactions, so the truth will emerge then.

[anxious123]

Hi,

 

Thanks I understand. There is no signature from my partner on the sheet, only by someone from Mint. There are just two ticked boxes, one for the agreement, one for loan protection. I'll try to send a bigger copy of the sheet. Should we send the defence you drafted but omitting the parts about the Consumer Credit Act 2007 not being relevant?

[creditcardmug]

No, send as is, how are you to know what date this is from, if they haven't given the date in the POC.

 

If there's nothing with your signature on you have nothing to worry about (as long as the app. wasn't done online)