Court action against Horwich Farrelly - partial win!

[olms]

Hi,

I'll briefly go through my case - I CCA's Cap 1 and the usual happened and got letters from Horwich farrelly demanding money. I CCA'd them and they sent aletter stating that they wouldn't take any further action, however on the same day they issued court papers to my old address, which I hadn't lived at for 4 years. I appealed against this and went to court last week, they didnt show up but sent the Judge information which contained blatant lies - needless to say they ddn;t send it to me. The judge OVERTURNED the ruling and now I have 28 days to send in my defence.

I need help from anyone please as what to out in my letter of defence. They still haven't given me a copy of a signed agreement, just a letter of application. They have ignored my CCA requests and I need to follow this up with the court ASAP.

 

A partial win against liars - but please help me to fight the last bit!

 

Thanks to everyone who gave me great advis last time - it worked!!

Thanks in advance

[atwozee]

Hi OLMS!Can you post up the particulars of claim – that would be a good place to start.Did Capital One sell this debt on?

[jo1lygrngiant]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/167798-capital-1-horwich-farelly.html

 

requested by olms, to show the original thread.

[atwozee]

Did you ever get a copy of the County Court Claim – this will include the PoC.

We can’t help you put together a defence unless we know the PoC.

[olms]

Hi,

The only paper work we received is above. They sent us a letter saying that wouldnt take any further acion after we had written to them and said the account was in dispute and we also CCA'd them.

On that same day we received letter from the court, also above, saying that a judgement in default had been registered against us. When i rang the court HF had had the court papers sent to our old address, where we hadnt lived fo 4 years.

One of the reasons the judge overturned the judgement was because they deliberatley tried to mislead us and we had proof that they knew our current address.

The judge gave us their defence but it contains nothing more than records apparently showing phone calls to our house and an apparent agreement to pay it, none of which were true.Th only record we have of it going to court is the judgement ruled against us.

hope this makes sense!

[atwozee]

Okay I understand.

You need to think about this as starting from scratch – the original default judgement has been set aside – good – now you have been asked to submit a defence – your defence is a counter to the particulars of claim – if you don’t know what they are you cannot defend properly – nor can you request copies of documents in the PoC if you don’t know what they are.

First thing to do is phone the court and request a copy of the claim form – explain that the claim form was sent to the wrong address and you need a copy to submit your defence - you have the claim number on the default judgement.

The next step would be to request copies of documents mentioned (or inferred) in the PoC.

To defend properly you will need a copy of –

The alleged agreement

The default notice issued pursuant to s87 of the CCA 1974 and proof of service.

Statements to show how the amount claimed has been reached (not sure if this is a credit card or loan)

The notice of assignment and proof of posting

The deed of assignment or sale agreement between Capital One and Robinson Way showing legal right to make the claim.

[olms]

Hi,

 

That's great thanks. Ive rung the court but its closed until tomorrow, will do it again then. My worry is that we only have 28 days to send our defence in to the court, and if the documents don't come from HF do I write to the court explaining that?

 

HF didnt send a copy of it to the judge either, I'm presuming that it's because it had our old address on it!

Thanks again to everyone who has helped us so far - exhausting or what!!!

[atwozee]

They were sneaky first time round – second time is going to be much harder.

It is unlikely you will get the required copies anyway but this is the process you need to go through.

Let us know how you get on with the court tomorrow – plenty of time so don’t worry.

[creditcardmug]

Subbing, will post later, bit busy at the mo.

[olms]

Hi,

I've spoken to the court and they will send the claim out to me, but she says that it was lodged under the heading that there is outstandig monies due to a credit agreement.

both Cap 1 & HF have ignored our requests for a signed CCA and actually have only sent an application form but no agreement etc.

Do you have a template I can send to the court to defend this pease?

Thanks again

[nicklea]

have a look for posts by pt2537. He has written several defences that are specifically for this situation.

 

If you're still having trouble finding them when the deadline is getting near then give another shout and I'll dig them out for you.

 

The defence you'll submit basically says that you have asked for proof of the debt, the claimant has provided no evidence that they own the debt and that you are asking for a stay until such time as the claimant can proove that they have an enforceable agreement at which time you will amend your defence accordingly

[creditcardmug]

Hi olms, have you got a notification from the court that the judgement was set-aside? can you post up what it says on that order?

[olms]

Hi,

When I spoke to the court this morning, they said that they hadn't done anything yet as it was set aside on Wed 8th, but because of the bank holidays nothing else has been done yet.

When that cmes I'll post it on her.

 

Thanks again for all your help:)

[olms]

Hi, I received the POC today from the court, I can't scan it until Monday so I'll type it - its very brief.

 

"The claimant claims outstanding monies due to and payable by the defendant under a credit agreement whereby the defendant agreed to repay with interest the value of the credit obtained and the claimant claims 1. the sum of ... interest pursuant to S69 of the county court act 1984 at the rate of 8.00 % from ... to date hereof 600 days is the sum of ... future interest accruing at the daily rate of .25.4 costs"

 

As previosuly said Ive CCA'd HF and Cap 1 for a signed CCA but nothing. Ive still got the letter from HF saying that they would take no further action. Can you help me with my defence please.

 

Thanks again for your help

[creditcardmug]

So, are you now free to file a defence (i.e.), starting from scratch?, if so what date must you file it by?

[olms]

Hi, It was set aside on 8th April, have 28 days so by 6th May. Thanks:)

[creditcardmug]

Ok, i can help with the defence, you have a bit of time yet, bump the thread a few times over the next few days, just to remind me, and for others to comment, i have a few more urgent ones to help with first.

 

Meanwhile read as many threads as you can on here concerning similar cases, particularly the WON threads in the legal forum.

[olms]

That's great thanks, will do

[atwozee]

I would say that you need to get a CPR 31 request off as well – but you can only ask for a copy of the credit card agreement. – they will have to produce one at some stage.

The PoC is woeful – They don’t even claim to have been assigned the debt from cap 1

CCM knows his stuff – you’re in good hands there – but keep an eye on your timings – better to file early in this instance.

[creditcardmug]

Have you sent the CPR request yet?

[creditcardmug]

Have a read through this, make sure all is present and correct, if you haven't sent the CPR request i can amend it

 

 

In the Northampton 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 claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or 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 attached to the claim form.

 

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 attached to the claim form.

 

d) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

e) . It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

 

f) The claimant did not serve a letter before action

 

5. 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

 

6. 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.

 

7. 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 Thursday 31st January 2008

 

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.

 

8. 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

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to Capital One Bank requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

( letter attached marked Exhibit A)

on the DATE I wrote to xxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

( letter attached marked Exhibit B)

 

 

10. To date I have not had a reply to these requests

 

 

 

11. 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

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 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

 

13. 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."

 

14. 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

 

15. Notwithstanding points 11 and 12, 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

 

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

 

 

17. . 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

 

18. 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.

 

19. Notwithstanding point 18, 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)

 

20. 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

 

21. 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.

 

22. 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

 

23. 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.

 

24. 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

Edited April 26, 2009 by creditcardmug

[olms]

Hi,

sorry to be a bit thick what's the CPR? I suppose that answers your question!!!

do you have a template or letter i can use as my defence to send them please?

 

Thanks again for your help:)

[creditcardmug]

The CPR is the Civil Procedure Rules, this governs procedures in the civil courts

You can request the claimant provides copies of documents referred to in their POC under CPR rule 31.14, but its a bit late for that now, so i will delete that bit and renumber it for you.

 

My post above IS your defence.

[creditcardmug]

You say you have made two CCA requests, you need to amend point 9 to include the dates etc, and attach photocopies to send with the defence

[diddydicky]

just an observation

 

would it be wise to go into detail as to why you want a copy of the notice of assignment? if you are saying that youve nevber had it and you want to check that it is all in order - surelhy it gives them the opportnity to double check what they have and to knock up one that fits the bill?

 

 

sorry not legally trained - just a thought