Phoenix Claimform HSBC Credit Card **Won - discontinued!**

[jon888999]

Claim form 1 below,

 

Claimant

PHOENIX RECOVERIES (UK) LTD SARL-MARLIN RECOVERIES

25B BOULEVARD ROYAL L-2449

LUXEMBOURG

 

Address for sending documents and payments (if different)

2 THE COURTYARD

SEEDING COURT.,

SHOREHAM ROAD

STEYNING

WEST SUSSEX,

BN44 3BJ

0845 370 9280

 

Particulars of Claim

By an agreement in writing between HSBC Bank PLC (HSBC) and the Defendant dated 1987 (the Agreement), HSBC agreed to issue the Defendant with a Credit Card upon the terms and conditions set out therein.

 

 

In breach of the Agreement, the Defendant has failed to make payments of not less than the minimum payment shown on the monthly statement. HSBC served a Default Notice on the Defendant stating the sum due & requiring the Defendant to pay the same.

 

 

 

The Defendant failed to pay & the Agreement was terminated. The Agreement was assigned to the Claimant on 05/10/2007.

 

 

 

THE CLAIMANT THEREFORE CLAIMS:

1. xx

2. Interest at the rate pursuant to the Agreement namely xx continuing until Judgment or sooner payment at the daily rate of xx or in the alternative interest pursuant to section 69 of the County Courts

Act 1984. Also, interest at the rate pursuant to the Agreement from the Judgment date until payment.

 

 

 

 

Claim No 2

 

 

 

Particulars of Claim

 

 

 

By an agreement in writing between HSBC Bank PLC (HSBC) and the Defendant dated/1989 (the Agreement), HSBC agreed to issue the Defendant with a Credit Card upon the terms and conditions set out

therein. In breach of the Agreement, the Defendant has failed to make payments of not less than the minimum payment shown on the

monthly statement.

 

 

 

HSBC served a Default Notice on the Defendant stating the sum due & requiring the Defendant to pay the same. The Defendant failed to pay &

the Agreement was terminated. The Agreement was assigned to the Claimant on 05/10/2007.

 

 

 

THE CLAIMANT THEREFORE CLAIMS:

1. xx

2. Interest at the rate pursuant to the Agreement namely xx continuing until Judgment or sooner payment at the daily rate of xx or in the alternative interest pursuant to section 69 of the County Courts

Act 1984. Also, interest at the rate pursuant to the Agreement from the Judgment date until payment.

 

 

 

 

I stupidly admitted these claims but was ordered by the court to pay a total of £400 per month, despite giving my I&E showing a small amount of surplus each month.

 

 

So I researched and got them set aside. I then expected the claimant to discontinue, but they didn't.

Edited April 20, 2009 by jonni2bad
Formatting and moving in order

[jon888999]

Set aside order below.

 

Can't find the first set aside order, but I did attend both hearings on consecutive days, the District Judge seemed very nice, and the first one stated set aside due to Incorrect advice on CCA by Claimant's solicitor (or something like that)

 

Before DISTRICT JUDGE ACKROYD sitting at Portsmouth County Court, Courts of Justice, Winston Churchill Avenue, Portsmouth, Hampshire, PO1 2EB.

Upon reading the letter from the Claimant and the Defendant not attending

IT IS ORDERED THAT

1. The Judgment is set aside.

2. The Defendant shall by 1 August 2008 file and serve a defence and counterclaim (if any).

3. Consolidate with, which shall be the lead matter.

4. No order for costs.

Dated July 2008

 

This was my Defence...

 

1. I am the defendant in this action and make the following statement as my defence to the claims made by Phoenix Recoveries (uk) Ltd SARL

 

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 Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt 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.

Please see attached written confirmation from the Original creditor (HSBC) that the alleged agreements do not exist. Copy attached on appendix 1.

Please see attached written confirmation from the the Claimants Solicitor that the alleged agreements do not exist. Copy attached on appendix 2.

 

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.

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

 

Abuse of the process

6. I ask the honourable court to consider that this claim is outside of the Jurisdiction of the UK County Court System. The Claimant is a Luxembourg registered company. The reference to a Uk limited company is incorrect.

No record of Phoenix recoveries (uk) Ltd (or any variation of that name) is held by uk companies house. Therefore the claimant & alleged debt are outside of the uk and therefore not subject to the county courts jurisdiction.

In these circumstances the claimant brought this action unlawfully & is an abuse of the County Court System. Purely on the grounds of Jurisdiction, it is requested that the court strike out this case as a clear abuse of the process.

This claim is being made from abroad in an attempt to avoid penalty for attempting to enforce agreements that the claimant knows to be Unenforceable.

 

I also confirm that these accounts were in dispute prior to the commencement of action by the Claimant. The commencement of legal proceedings in theses circumstances was counter to the ‘Overriding Objectives’ of the new Civil Procedure Rules. Moreover, paragraph 4 of the Protocols Practice Direction states that in cases not covered by an approved pre-action protocol, the court will expect the parties “to act reasonably……..in trying to avoid the necessity to start proceedings”

 

The relevant Act of Parliament in this Case

 

7. Firstly I will address the issue of which Act is relevant in this case, in case it has been suggested by the Claimants Solicitor and HSBC 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.

8. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

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.

 

9. 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

 

Credit account

 

10. The claim relates originally to HSBC credit card accounts and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia

 

(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

 

11. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

 

12. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

 

13. Therefore 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.

14. Please see attached written confirmation from the Original creditor (HSBC) that the alleged agreements do not exist. Copy attached on appendix 1. Please see attached written confirmation from the the Claimants Solicitor that the alleged agreements do not exist. Copy attached on appendix 2.

 

15. The Claimant is therefore put to strict proof that such agreement exists

 

The Request for Disclosure under the CPR

 

16. Further to the case, in 2008 in anticipation of the resumption of proceedings I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement between and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

17. This request was sent by royal mail recorded delivery document number DVGB and was received by the claimant on xx 2008

 

 

18. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

Consequences of Non Disclosure of the agreement

 

19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant would need 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)

 

20. 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

21. Furthermore 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

 

22. With regards to the Authority cited in point 17, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000.

Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6.

The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it.

The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order.

In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

19. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order.

The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

 

22. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

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

 

167 Justice of the Peace (2003) 773.

 

 

 

The default notice

23. Furthermore, since the account referred to in the particulars of claim is 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

 

 

24. It is neither admitted or 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

 

25. Notwithstanding point 19, 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)

 

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

 

 

Deed of Assignment

 

 

27. The defendant requires sight of the deed of assignment of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L , for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L.

 

 

Conclusion

 

28. 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.

 

29. 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) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreements unenforceable and strike out the claimants case accordingly

30. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

 

Edited April 20, 2009 by jonni2bad
Formatting etc

[jon888999]

Reply to defence...

REPLY TO DEFENCE

This Document is offered in reply to the Defendant's Defence dated July 2008:

1. As to Paragraphs 3, 4, 4a and 5 of the Defence the Claimant asserts that the Particulars of Claim provide sufficient information to identify the

accounts in question, the name of the original creditor, and the breach. It

is denied that the particulars of claim do not contain an adequate

statement of facts.

They do confirm that the issue of the default notice and the assignment of the Agreement to the Claimant. The Claimant was unable to serve any documents with the claim form as it was served via the Claim Production Centre in Northampton. The Claimant asserts that the Defendant is fully aware of the claim he has to meet.

Both credit card agreements were open for 18 and 16 years respectively and the Defendant made monthly payments towards each credit card agreement every month until the date of closure in 2005.

The Defendant wrote to Marlin Financial Services on 19th January 2008, 2nd February 2008, 29th February 2008 and 6th March 2008 (who were instructed to administer the outstanding debts) enclosing cheques for monthly repayment of the debts. It is therefore denied that the Defendant is fully aware of the case to meet as per paragraph 5 of the Defendant's Defence.

2. It is further brought to this Court's attention that the Defendant filed Part Admissions in response to the original claim forms admitting the sums of £x,xxx and £xxxxx respectively. The Defendant did not have any

contact with the Claimant or the Claimant's solicitors between the date of

issue of the claims and the filing of the Part Admissions. It is denied that

any advice was given to the Defendant at any time.

 

Abuse of Process

3. As to paragraph 6 Mortimer Clarke Solicitors is acting on behalf of the

Claimant with an address for service within the jurisdiction in compliance

with CPR 6.5. The subject matter of these proceedings is based on the law in England and Wales, the Credit Agreements being subject to English law, and the Claimant was therefore fully entitled to commence the action in this jurisdiction.

The Defendant has in any event not complied with the procedure to dispute a Court's jurisdiction as set out in CPR 11.

 

4. It is denied that the Claimant did not comply with the Overriding

objectives. The Claimant wrote to the Defendant on 20th December 2007,

21st December 2007, 15th January 2008, 7th February 2008, 28th February 2008 and 5th March 2008, in each instance seeking repayment of the debts. On 12th March 2008 the Claimant did issue a Letter Before Action to the Defendant in respect of each credit agreement allowing seven days to repay the debt and confirming that legal proceedings would be taken unless the debt was repaid.

The Defendant failed to comply with the Letter Before Action and therefore the Claimant commenced legal action for the recovery of the balances due. The Defendant made a request for the credit agreements but raised no dispute. It is therefore denied that the agreements were in dispute prior to the commencement of the claim.

The relevant Act of Parliament in the Case

5. As to Paragraphs 7 and 9 it is denied that the Claimant has alleged that

the Consumer Credit Act 2006 is relevant to this claim. Both credit agreements are regulated by the Consumer Credit Act 1974, which was

amended by the Consumer Credit Act 2006.

Credit account

6. Paragraph 10 is admitted. The Defendant does not allege that there was a breach and therefore this is not in issue.

7. Paragraph 11 is denied. Both Credit Agreements are regulated by the

Consumer Credit Act 1974.

8. Paragraph 12 of the defence is admitted. There is an agreement between the parties containing the prescribed terms and it was signed in the prescribed manner. The Defendant does not allege that there was a breach and therefore this is not in issue.

9. As to paragraph 13 and 14 the Claimant has a legitimate right of action

and has produced the documentation in compliance with Regulation 3 of

the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983. In any event the credit agreements have ended (see

paragraph 13 below).

10. Midland Bank, now part of HSBC Bank pic, supplied the Defendant with

two credit cards which he used to make purchases. He had the benefit of

the credit and the purchases he made with the credit cards. Midland Bank

and HSBC Bank plc would not have provided the credit cards without first

executing credit agreements with the Defendant.

The statements further confirm the Defendant's acceptance and affirmation of the terms of the credit agreements when he used the credit cards for his own benefit. The Claimant has therefore proved that the credit agreements were made and that credit was provided under them to the Defendant.

 

The Request for Disclosure under the CPR Consequences of non-disclosure of the agreement

11. As to paragraphs 16 to 18, the credit agreements to which this

consolidated claim relates were opened on 13th February 1987 and 3rd

November 1989 respectively. As both of these documents are over 20

years old HSBC Bank plc no longer retains a copy of the original

agreements as the standard retention period for documents is six years.

In compliance with Regulation 3 of the Consumer Credit (Cancellation

Notices and Copies of Documents) Regulations 1983, Mortimer Clarke

Solicitors wrote to the Defendant on 24th July 2008 enclosing a copy of the Application Form which would have been signed at the time of opening, Midland Bank's Access Visa terms and conditions which were at the time the credit card accounts were opened and the changes to the terms and conditions of accounts. Paragraph 18 is therefore denied.

13. Further, or in the alternative, as per Paragraph 16 of the Judgment

granted by His Honourable Judge Simon Brown QC in the High Court Case

of 'Rankine -v- Various'/Case No: 8BM40009-13m, the High Court ruled

that where a creditor "is seeking enforcement, section 78(6) of the

Act does not have effect....First, the prohibition is against a

creditor "under an agreement". The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word "enforce" is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement......'

A full copy of the Judgment is attached hereto for your reference as Exhibit 1.

The Claimant submits that under this case law, s77 of The Consumer Credit Act 1974 and therefore section 78, being materially similar, does not apply as the Agreement had already been terminated and therefore was at an end. The Claimant was therefore not prohibited from commencing action in respect of the Defendant's breach of the credit agreements and there are no grounds for preventing the continuation of these proceedings.

14. The credit agreement and the copy statements sent to the Defendant's address for service every month while the credit accounts were open, complied with the requirements of the Consumer Credit Act 1974 outlined by the Defendant. The Defendant did not dispute the amounts claimed by HSBC Bank plc on the monthly statements. The Defendant made monthly payments towards the credit agreements in acceptance of the amounts due.

15. It is denied that the credit agreements do not comply with the provisions of the Consumer Credit Act 1974. In any event the Defendant does not dispute that HSBC Bank plc complied with the provisions of the Consumer Credit Act 1974.

16. It is denied that the Claimant has failed to provide the Defendant with any other information vital to his Defence, in accordance with the CPR. The further information requested by the Defendant was either previously

given to him, in particular the default and termination notices and notice

of assignment, or would not have any benefit to the Defendant in relation

to his Defence as it would not provide any grounds for his Defence.

17. As to paragraphs 19 and 20, this claim is founded upon the Defendants failure to repay debts due under credit agreements. The Defendant has stated that he requires to assess the credit agreements against the prescribed terms required under the Consumer Credit (Agreements) Regulations 1983 that apply to fixed-sum loan agreements, which provisions do not apply to running-account credit agreements such as those the subject of this claim. The Defendant's contentions under

paragraphs 19 and 20 therefore do not assist his defence.

18. As to paragraphs 21 and 22, the Defendant merely refers to legislation

and cites from cases. If he is seeking to apply these references to his

contentions under paragraph 20 of the Defence, such reference is

immaterial as it is founded on his contention that the prescribed terms

relating to fixed-sum credit agreements are applicable. The reference by

the Defendant to text from the website of Francis Bennion provides no assistance to his Defence as such text is not precedent for this Court.

In any event, the Defendant does not state a defence to the Claimant's claim.

Furthermore, the legislation and cases cited are in relation to applications for enforcement orders; the Claimant has not sought an enforcement order in this matter and so there is no point to answer.

The Default Notice

16. As to paragraph 23, the Defendant does not deny that the default notices were issued by HSBC Bank plc. He simply lists the requirements of the issue and format of default notices, which the Claimant complied with. The Claimant issued the default notices to the Defendant and they were not returned by the Post Office. The Default Notices were validly served even if the Defendant did not receive them (which the Defendant does not admit or deny) in accordance with Section 176(2) of the Consumer Credit Act 1974.

17. As to paragraphs 24 and 25, it is denied that the Default Notices were

invalid. The Claimant asserts that the Defendant is not in a position to

allege that they were invalid owing to the fact that he is unable to admit

or deny whether the Default Notices were received. Default Notices issued

by HSBC Bank plc are standard and in a prescribed format in compliance

with the requirements of the Consumer Credit Act 1974.

Dated this September 2008

Can't get a decent scan of the T&Cs sent although they are irrelevant as they are dated wrong as is the blank credit agreement.

Edited April 20, 2009 by jonni2bad
Formatting

[cerberusalert]

as the standard retention period for documents is six years.

I was under the impression that documents had to be held for a minimum of six years after an account was closed.

[jon888999]

I was under the impression that documents had to be held for a minimum of six years after an account was closed.

So was I!!!

[cerberusalert]

IIRC it's covered under the money laundering act & the data protection act.

[jon888999]

Court order March 2009

 

Standard order for stay for settlement with consent of all the parties

 

All parties having agreed

DISTRICT JUDGE ACKROYD orders that this claim is stayed until 01 May 2009 to enable the parties to attempt settlement.

 

On or before 15 May 2009, one of the following steps must be taken:

either

the Claimant must notify the court that the whole of the claim has been settled; (see note (i) below)

or

the Claimant or Defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediator, expert, or other person helping with the

process. The letter should confirm the agreement of all the other parties, (see note (ii) below)

or

all the parties must file a completed allocation questionnaire at the court.

 

Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire.

The list must be agreed with the other parties and must indicate that it has been agreed.

 

Date 13 March 2009

 

Note (i): Where settlement of the claim is achieved before the end of the period of stay, the following will be taken to include an application for the stay to be lifted:

(a) an application for a consent order to give effect to the settlement

(b) an application for approval of a settlement where one or more of the parties is a person under a disability: and

© the filing of a notice of acceptance of monies paid into court, or an application to accept monies paid into court out of time.

Note (ii): Extensions to the period of stay will generally be no more than 1 month.

 

Note: Allocation forms were previously submitted and allocation hearing took place, where the case was stayed to allow mediation. The Claimants refused to attend face to face mediation as I and the mediator felt was necessary.

 

This is the response from Claimant.

Without Prejudice

 

Dear Sir

 

Re: Phoenix Recoveries (UK) Ltd SARL - Marlin Recoveries -v-

Claim No:

 

We refer to the above matter and note that you chose not to proceed with mediation. In an attempt to bring this protracted litigation to a conclusion, our Client would be willing to accept a reduce sum in full and final settlement, payable by instalments.

 

If you are willing to settle upon the terms proposed in the enclosed Consent Order, please sign and return it to this office within 7 days. The additional copy is for you to keep.

 

Please take note that if we do not receive the signed Consent Order within that time, we are instructed to proceed with the claim, incurring substantial costs for which you may be liable.

 

Please also be advised that we reserve the right to bring this offer to the attention of the Judge on the question of costs.

 

Yours faithfully

Mortimer Clarke Solicitors

 

 

******Note the dates*******

 

 

IN THE PORTSMOUTH COUNTY COURT

 

CONSENT ORDER

 

UPON the parties having agreed terms of settlement BY CONSENT

IT IS ORDERED that all further proceedings herein be stayed upon the terms set out in Schedule 1 hereto save for the purpose of enforcing or carrying into effect the said terms with liberty to apply for that purpose.

AND IT IS FURTHER ORDERED that there be no order for costs.

 

 

 

Dated the

 

day of

 

2009

 

SCHEDULE 1

 

1. The Claimant will accept the sum of £,000.00 as full and final settlement (the Defendant's "Settlement") of its claim against the Defendant in this action in respect of reference number xxx.

The Defendant does pay the Claimant consecutive monthly instalments of £12.00 to reference xxxxxxx commencing on 24th August 2008.

 

2. The Claimant will accept the sum of as full and final settlement (the

Defendant's "Settlement") of its claim against the Defendant in this action in respect of reference number xxxxx

The Defendant does pay the Claimant consecutive monthly instalments of £12.00 to reference commencing on 24th August 2008.

3. That if the Defendant fails to comply with Clause 1 and/or 2 of the Schedule, the Claimant be at liberty to enter judgment forthwith for the outstanding balance.

4. That both parties be at liberty to apply.

 

We hereby agree to settlement on terms set out above

 

Mortimer Clarke

Solicitors for the Claimant Defendant

16-22 Grafton Road

Worthing

BN11 1QP

Edited April 20, 2009 by jonni2bad
Formatting

[jon888999]

Previous offer from Claimant which I declined:

Mortimer Clarke Solicitors

Without Prejudice

Dear Sir

Re: Phoenix Recoveries (UK) Ltd SARL - Marlin Recoveries -v-

Claim No: xxxxxx

We refer to your letter of 17th July 2008. We understand that you have written to HSBC Bank plc and that a response was issued to you on 16th July 2008.

 

Please find enclosed a copy of the application form which would have signed at the time of opening, the Current terms and conditions of account and Midland's Access Visa terms and conditions as promised by HSBC Bank.

We note that the court orders dated 17th July 2008 confirm that the judgments have been set aside, the claims consolidated and that you have been ordered to file a defence by 1st August 2008.

It is clear from the evidence on the file that you do not dispute that you owe the monies outstanding. On 18th March 2008 you made an offer to repay the outstanding debts by monthly instalments of £50.00. On 4th April 2008 you made a further offer to repay the debts by monthly instalments of £35.00 per month. On 7th April 2008 you made another offer of £50.00 per month. Our Client was unable to accept these offers as it would have taken over 25 years to repay the debts.

When the county court claims were issued you filed Part Admissions which were accepted by our Client. You admitted the sum of £xxx in respect of claim number xxxxxx

Your monthly offer in the sum of £xx was not acceptable in view of the fact that your monthly available income after deductions was xxxxxx. The Northampton County Court Bulk Centre made an assessment of your means and ordered you to pay the judgment debt by monthly instalments of xx

You also admitted the sum of £xxx in respect of claim number xxxxxx and this sum was accepted by our Client. You offered to repay the debt by monthly instalments of £xx The Northampton County Court Bulk Centre

again made an assessment of your means and ordered you to pay the judgment debt by monthly instalments of xxx

 

In order to bring this protracted matter to an amicable conclusion, our Client would be willing to enter into a settlement agreement with you.

If you are willing to settle upon the terms of the enclosed Tomlin order, please sign and return it to this office within 7 days. We look forward to hearing from you.

Yours faithfully

Mortimer Clarke Solicitors CC HSBC Bank plc

The figure goes down every time!!

TOMLIN ORDER

UPON the parties having agreed terms of settlement BY CONSENT

IT IS ORDERED that all further proceedings herein be stayed upon the terms set out in Schedule 1 hereto save for the purpose of enforcing or carrying into effect the said terms with liberty to apply for that purpose.

AND IT IS FURTHER ORDERED that there be no order for costs.

Dated the day of 2008

Mortimer Clarke

Solicitors for the Claimant Defendant

2 The Courtyard

Seeding Court

Upper Beeding

Steyning

BN44 3BJ

SCHEDULE 1

1. The Claimant will accept the sum of £xxx as full and final settlement (the Defendant's "Settlement") of its claim against the Defendant in this action in respect of reference number xxxxxxx. The Defendant does pay the Claimant consecutive monthly instalments of £25.00 to reference xxxxxxx commencing on 24th August 2008.

2. The Claimant will accept the sum of £xxx as full and final settlement (the Defendant's "Settlement") of its claim against the Defendant in this action in respect of reference number xxxxxxx. The Defendant does pay the Claimant consecutive monthly instalments of £25.00 to reference xxxxx commencing on 24th August 2008.

3. That if the Defendant fails to comply with Clause 1 and/or 2 of the Schedule, the Claimant be at liberty to enter judgment forthwith for the outstanding balances.

4. That both parties be at liberty to apply.

We hereby agree to settlement on terms set out above

Mortimer Clarke

Solicitors for the Claimant

2 The Courtyard Seeding Court

Upper Seeding

Steyning

BN44 3BJ

Unfortunately I didn't carry out my threats of reporting their actions at that time, but I have now!!!

My reply...

Mortimer Clarke Solicitors. (by e.mail)

CC. Stephen Green, HSBC CEO. (by e.mail c/o sara.j.dare pa)

Original sent by Special delivery.

WITHOUT PREJUDICE

Dear Sirs.

ACCOUNTS FORMALLY DISPUTED.

I refer to your letter dated xxxxxx

Your offer to settle is declined.

The Copy of an agreement you enclosed does not meet the requirements of the CCA and in no way relates to these alleged accounts. You and HSBC have admitted in writing that no agreements exist. Therefore these accounts are clearly Unenforceable, you are aware of this and have been for sometime.

It is clear that you, your client and HSBC have no regard for the legal system.

Any admission I may have made was purely down to Harassment and misrepresentation of the CCA by yourselves. The District Judge agreed this during the set aside hearing.

It is most likely that this misrepresentation of the CCA was an offence under the fraud act, especially as you are supposedly professionally qualified.

My defence is prepared and will be served on you and filed with Portsmouth County Court on the 1st of August 2008.

My complaints/reports will be submitted to the various Law Enforcement agencies and regulatory bodies at the same time. I will also contact various press organisations & internet forums to make public your failings, your clients failings and HSBCs failings.

If you genuinely wish to settle this claim out of court, and avoid my counterclaim you must immediately comply with my letters dated 17th July 2008 and 28th June 2008. (Copies attached.)

You must confirm acceptance by Wednesday 30th July 2008. If no confirmation is received I will carry out the actions stated above and in my previous letters.

Due to the short time scale you are welcome to reply by e.mail.

Failure by you to confirm that you have discontinued these unlawful & vexatious claims and complied in full with my requirements will result in the full force of the law being brought to bear on you, your client and HSBC.

Yours Faithfully

xxxxxx

Edited April 20, 2009 by jonni2bad
Formatting

[jon888999]

An offer I made in January - no response received.

 

Mortimer Clarke Solicitors.

 

xxth January 2009

 

Dear xxxxxx.

 

Accounts in serious dispute.

I do not acknowledge these alleged debts.

 

This letter will be produced in court, should it be necessary.

 

HSBC have now complied fully with my Data Protection Act, request for full disclosure. I am assured in writing that they have fully complied with my request and no further documents exist.

 

I advise you of the following:

 

1) HSBC are unable to provide copies of the alleged original agreements.

2) HSBC are unable to provide copies of the alleged default notices issued.

 

Therefore it can only be assumed that these documents have never existed. If you still wish to allege they have, please produce proof by return.

 

3) A very large amount of unlawful charges have been added to this alleged account.

 

It is apparent from the written evidence provided by yourselves & HSBC that these accounts are totally and irredeemably unenforceable.

 

It is clear that these claims have no chance of success.

 

I remind you of the following:

The Ministry of Justice, Civil Procedure Rules states.

 

PRACTICE DIRECTION – STATEMENTS OF CASE

 

This practice direction supplements CPR Part 167.3

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, 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).

 

This is in addition to the requirements of The Consumer Credit Act 1974.

 

Clearly you are unable to produce the original written agreement in Court.

 

Any acknowledgement I may or may not have made in the past was solely due to incorrect and misleading information being provided in writing and continual Harassment by Marlin & Mortimer Clarke. As you are aware, district judge Ackroyd stated this on a set aside order.

 

However in order to bring this matter to a speedy conclusion, whilst I do not acknowledge these alleged debts, I am prepared to Offer as a goodwill gesture, Full & Final settlement of £1000 in total, this is for both accounts.

 

All defaults must be marked as fully satisfied. In return I am prepared to agree to confidentiality and not to pursue Mortimer Clarke, Marlin, Phoenix and HSBC for any of the many failings in attempting to pursue this unenforceable debt.

 

This offer is very generous and you should advise your client to accept it.

This payment could be made by the 5th of March 2009

No increase is possible. This money would be obtained from a relative.

 

You should appreciate the current worldwide financial situation and accept that this offer is fair and reasonable.

 

Please confirm your acceptance by return. If this is not received then I shall be left with no option but to continue with my defence. I am unable to afford the mediation fee at this stage. Your representative in court advised that mediation would be at no costs to myself.

 

If you wish to accept this offer please prepare a Tomlin order to this effect.

 

Please note a copy of this letter is being forwarded to Phoenix in Luxembourg and various uk addresses for them.

 

 

Yours Faithfully

 

 

Report made to court following first stay for mediation.

 

5th February 2009.

 

The Court Manager

Portsmouth County Court.

Portsmouth

 

Dear Sirs.

 

Firstly I apologise if I am submitting this request in an incorrect format.

 

Following the stay for Mediation/negotiation. I regret to advise the court of the following:

 

1) Unfortunately Mortimer Clarke refused face to face mediation. I did not consider telephone mediation to be acceptable in this case, I felt that I would be unfairly treated, I needed sight of any documents that the claimants referred to.

 

2) In court at the allocation hearing, I reached what I understood to be an agreement with Mortimer Clarkes Representatives. This agreement was not honoured by Mortimer Clarke. Mortimer Clarke have failed to respond to any communications that I have sent directly to them

 

3) I have now received “Full disclosure” under the data protection act from HSBC, the original creditor. It is clear that no original and signed correctly executed agreements exist for these alleged debts.

 

4) As I’m sure the Honourable Court is aware:

The Ministry of Justice, Civil Procedure Rules states.

 

PRACTICE DIRECTION – STATEMENTS OF CASE

This practice direction supplements CPR Part 167.3

 

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, 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).

 

This is in addition to the requirements of The Consumer Credit Act 1974.

 

Clearly the claimant are unable to produce the original written agreement in Court.

 

Therefore I urge the honourable court to Immediately strike out these claims, to prevent anymore of the courts valuable time being wasted. It is clear that these claims have no lawful basis.

 

Any precious admissions I may have made in relation to these accounts, were made under Duress. Mortimer Clarke also misrepresented in writing the consumer credit act. This was the basis of the set a side orders granted by the court in July 2008

 

I have attached a draft order, for the courts consideration.

 

Statement of Truth

 

I believe the above statement to be true and factual

 

 

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

 

Date February 2009

 

The following was submitted but I did not actually apply for an application...

 

The Claimant and Original Creditor have admitted in writing that True copies of the alleged original signed agreements are unavailable. The claimant are unable to comply with The Ministry of Justice, Civil Procedure Rules.

 

PRACTICE DIRECTION – STATEMENTS OF CASE

This practice direction supplements CPR Part 167.3

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, 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

 

Therefore the claim will be struck out immediately.

 

 

Alternatively should the honourable court not agree with the above:

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• True Copies of the original signed Credit Agreements and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations

  
  

• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

  
  

• Document, contract or deed of assignment

  
  

• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

  
  

• Copies of any statement or other document relied upon

  
  

• Details of all Charges applied to this account by the original creditor or the claimant

  
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

 

 

 

Should the Claimant provide the required information, The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

  
  

• A counter claim taking due regard of the large amount of unlawful penalty charges applied to these alleged accounts.

  
  

Edited April 20, 2009 by jonni2bad

[jon888999]

Help!!! Where do I go from here????

[daarab]

Who's been a busy Boy.

Good on you Jon. I'm sure someone will have advice for you soon.

[jon888999]

This is what was ordered following the Allocation hearing...

General Form of Judgment or Order

Date 19 November 2008

Before DISTRICT JUDGE XXXXX sitting at Portsmouth County Court, Courts of Justice, Winston Churchill Avenue, Portsmouth, Hampshire, PO1 2EB.

Upon hearing the Solicitor for the Claimant and the Defendant in person IT IS ORDERED THAT

1. The claim is stayed to 31 January 2009 for the purposes of mediation; parties to report to the Court by 6 February 2009 as to the progress of mediation and what orders are sought.

2. Costs in the case.

Dated 12 November 2008

 

bump

 

Bump

 

Anybody got any ideas? I'm inclined to let the case go on, as I don't see how they can win with just a blank agreement.

 

bump for jon

[JGJ]

jon888999,

 

The claimant is required to provide to the court and yourself the 6 items of evidence within 14 days, your post #9 refers.

 

Failing that the claim shall be struck out without further order.

 

The next move will be dependant upon what they can produce in relation to the 6 items stipulated. Have you heard anything further from them??

 

I am sure someone will be along and advise you further re the procedural implications of the production of the original documents, you seem to be almost there good luck, this little bit of mine will bump up your post.

 

"EXEMPLO DUCEMUS"

[jon888999]

jon888999,

 

The claimant is required to provide to the court and yourself the 6 items of evidence within 14 days, your post #9 refers.

 

Failing that the claim shall be struck out without further order.

 

The next move will be dependant upon what they can produce in relation to the 6 items stipulated. Have you heard anything further from them??

 

I am sure someone will be along and advise you further re the procedural implications of the production of the original documents, you seem to be almost there good luck, this little bit of mine will bump up your post.

 

"EXEMPLO DUCEMUS"

 

Thanks, That's a draft order I sent in, The Court issued the order in Post 7, instead, perhaps I should pay the £75.00 and apply for the order in post 9. The latest communication is also in post 7.

My post is jumbled up because I entered the documents in the order I scanned them in.

Hello Guests, you might as well discontinue now!! Perhaps you should have behaved yourselfs a year ago!

Take Care.

Jon

Edited April 19, 2009 by jon888999

[jon888999]

Bump again.

[pookeymonkey]

Hi Jon

 

sorry I can't help much with your case, although like you say they shouldn't get far with no agreement.

 

Hopefully Distric Judge Ackroyd will be seeing DCA solicitors showing their true colours!! I have orders from him/her to do with my case at Portsmouth CC, so far all have them have been ignored. It seems so unfair, I make sure I complied with every order keeping proof of postage and delivery, yet the solicitors seem to make their own rules:evil:.

 

I have written to the Court Manager as well asking for the case to be struck out - its got to the Witness statement stage and yet NO paperwork regarding the account has ever been produced even though that was one of the Orders!!

 

Anyway good luck, Im sure someone with the knowledge to help will be along soon.

 

Pookey

[jon888999]

Thankyou to Jonni2bad for tidying my posts up.

[nicklea]

jon,

 

In this case it will also be very important to refer to the assignment and the notice of assignment in your defence (or rather the lack of them as well)

[joemay]

subbing

[jonni2bad]

A brief history of events is as follows (at least I think it is!!!)

 

Let me know if this is not correct...

1. Debt assigned Oct 07

 

2. Two separate claims issued c. March 2008

 

3. Defendant had not sought help and made 'partial admission' in original defence (query - where is this?)

 

4. Claimant wrote to Defendant advising that CCA not applicable

 

5. Court set payment at £184 pcm - Defendant not able to afford and sought help - found CAG...

 

6. Defendant applied for set aside on basis that Claimant misrepresented CCA and set aside granted. DJ told him privately to seek help with CCA law.

 

7. Claimant has admitted that CCA agreements no longer exist for these accounts but stated

 

"...However, Sections 77- 79 of the Consumer Credit Act 1974 states that should a true copy of the Agreement not be received within 12 days after the request then the Default cannot be enforced. This account is a terminated Agreement and therefore sections 77-79 are not relevant to this action."

 

8. Amended defence filed July 2008

 

9. No Default Notice or Assignment evidence provided - no proof of delivery provided.

 

10. Claimant replied to amended Defence July 2008 - post 3

 

However, Sections 77- 79 of the Consumer Credit Act 1974 states that should a true copy of the Agreement not be received within 12 days after the request then the Default cannot be enforced. This account is a terminated Agreement and therefore sections 77-79 are not relevant to this action.

 

10. Midland Bank, now part of HSBC Bank pic, supplied the Defendant with

two credit cards which he used to make purchases. He had the benefit of

the credit and the purchases he made with the credit cards. Midland Bank

and HSBC Bank plc would not have provided the credit cards without first

executing credit agreements with the Defendant.

 

The statements further confirm the Defendant's acceptance and affirmation of the terms of the credit agreements when he used the credit cards for his own benefit. The Claimant has therefore proved that the credit agreements were made and that credit was provided under them to the Defendant.

 

11. As to paragraphs 16 to 18, the credit agreements to which this

consolidated claim relates were opened on 13th February 1987 and 3rd

November 1989 respectively. As both of these documents are over 20

years old HSBC Bank plc no longer retains a copy of the original

agreements as the standard retention period for documents is six years.

 

11. Court Order March 2009 for stay - until 15 May 2009 - following submission of AQs

 

12. Claimant refused face-to-face meeting and insisted on telephone calls - Defendant rejected.

 

13. Claimant proposed Tomlin Order with reduced settlement figures - user rejected proposal

 

14. January 2009 - Defendant wrote to Claimant offering without prejudice £1000 F+F with conditions attached

 

15. Rejected

 

16. Recent amended Tomlin Order proposed by Claimant rejected by Defendant.

[I've got no money]

The Order staying the proceedings is a strange order BUT it means at this point technically you can't make any applications without also applying to lift the stay although it seems to suggest that filing an AQ on or Before...will act to lift the stay...

 

So I think that you need to file an AQ - ask for allocation to the fast track and tell the court that you will be applying to strike out, enclose an N244 with your application for an order to strike out or in the alternative for specific disclosure.

 

They're adopting an interesting approach to their refusal to disclose by saying that they only need to disclose documents which assist your case and that they haven't disclosed because giving you the docs won't help you. That is the test for standard disclosure (see CPR 31.6) however Part 31 also imposes additional disclosure requirements - see 31.14 which gives a right to see any docs mentioned in the claim form etc...

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

They've also quoted Rankine - we'll brief you fully before you get to court...

[jon888999]

A brief history of events is as follows (at least I think it is!!!)

 

Let me know if this is not correct...

Looks about right, recent Tomlin orders not rejected yet, just told them i'm seeking advice.

Thanks Jon

[jonni2bad]

Hi - Some pointers for you from those in the know;

 

Not producing the agreement and their arguments...

 

If they wish to enforce the agreement then they should be able to provide it. It is unfair on the debtor for the court to merely accept it was signed and it was "ok" without seeing it. Also, there are the usual suspects such as data protection, money laundering and company laws.

 

A sample of a recent Defence on this subject...

In light of the absence of any evidence; I would like to remind your client of the legal requirements upon it to keep records, in particular on the part of the original creditor.

 

For example 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 loan 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 the termination.

 

This interpretation is repeated by 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) - of particular significance is sub-paragraph (6).

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

 

The Claimant suggests that the Rankine case has merit here - as a reason for not needing to supply the original credit agreement.

 

Professor Goode rebuts that suggestion on the case commentary...

 

The court's strident and blunt approach is to be welcomed. This includes the statement at paragraph 9 that the Consumer Credit Act was introduced to protect the individual unsophisticated in financial affairs in contracts with unscrupulous and sophisticated financial institutions. It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities. In the latter regard, the court did not hesitate to dismiss the Rankines' various arguments in a commensurate tone.

 

 

However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor 'under an agreement'. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word 'enforce' is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.'

The grounds for questioning the statement are the following:

 

• (i) In section 189(1) 'creditor' is defined as 'the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor'; 'debtor' is defined as 'the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor'.
  

• (ii) The Agreements Regulations identify 'creditor' and 'debtor' with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.
  

• (iii) The expression 'enforce an agreement' is utilised in the Act to mean to take steps to assert one's rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression 'enforceable' when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: 'Enforcement of certain regulated agreements and securities'.
  

 

Are there any exceptions to having to provide proof of Default Notice?

 

NO - NOT ONE!

 

Are there any exceptions to having to provide proof of Assignment and/or proof of delivery ?

 

NO - they need to show the debt was assigned correctly, this would be the deed and the notice in tandem. See below

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the Law of Property Act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

Is the Claimant entitled to bring a case in this country?

 

Does the firm named as the owner of the debt have an OFT licence? Worth checking

 

See the lead story here HETHERINGTON: Daughter in tears over debt threat

Edited April 22, 2009 by jonni2bad

[I've got no money]

Hi - Some pointers for you from those in the know;

 

Not producing the agreement and their arguments...

 

If they wish to enforce the agreement then they should be able to provide it. It is unfair on the debtor for the court to merely accept it was signed and it was "ok" without seeing it. Also, there are the usual suspects such as data protection, money laundering and company laws.

 

A sample of a recent Defence on this subject...

 

 

The Claimant suggests that the Rankine case has merit here - as a reason for not needing to supply the original credit agreement.

 

Professor Goode rebuts that suggestion on the case commentary...

 

 

 

Are there any exceptions to having to provide proof of Default Notice?

 

NO - NOT ONE!

 

Are there any exceptions to having to provide proof of Assignment and/or proof of delivery ?

 

NO - they need to show the debt was assigned correctly, this would be the deed and the notice in tandem. See below

 

 

Is the Claimant entitled to bring a case in this country?

 

Does the firm named as the owner of the debt have an OFT licence? Worth checking

 

 

See the lead story here HETHERINGTON: Daughter in tears over debt threat

 

 

Don't forget that where there is an assignment that you are entitled to see it

[jon888999]

Thank you to all of you, who are helping in this case.

 

Am I right in my assumption that Mortimer Clarkes response to defence is a load of ----? I actually believe it is an attempt to mislead the courts?

Apart from complaining to OFT etc. Is there anything that can be done to stop the apalling behaviour of these claimants & Mortimer Clarke. Not even thinking of this case specifically but more in general.

What should be my next move?

 

Take Care

Jon