OH v Cap 1 & Rob Way *** WIN ***

[cymruambyth]

Fonts again:evil:

[cymruambyth]

Again...

 

Hopefully all the amendments have been done.

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

 

Defence

 

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

 

2. At the point where a defence was required the defendant was not in possession of documents from the claimant, which were vital to their ability to defend this action and placed then at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

 

3. The Claimant’s Particulars of Claim was insufficiently stated as it did not refer to the terms under which the claim was brought concisely and caused issues for the Defendant as to what the case to answer was; therefore the Defendant was unable to defend the claim properly.

 

4. On July 2009 the defendant requested disclosure of all the documents which the claimant is reliant upon to allow the preparation of a defence (see Exhibit xx1). The defendant requested the claimant supply this information in 14 days which is not unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents.

 

5. The claimant failed to supply the requested information within the requested time frame and the defendant entered an Application for Summary Judgement. With their submission of a revised Particulars of Claim, the claimant has now supplied some of the requested information (Attached Marked Exhibits xx2), and now after consideration of the documents which have been supplied the defendant is able to can now make a fully particularized defence to the claimant’s amended Particulars.

 

6. After consideration of the documents referred to in point 5, the defendant consequently denies the allegations made in the claimant’s particulars of claim and accordingly places the claimant to strict proof that they are indebted to them thereof.

 

The Agreement

 

7. The credit agreement supplied, which is called ‘A Short Application Form’ is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable.

 

8. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

9. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

10. 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.

 

11. It is submitted 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. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. A copy of terms and conditions was forwarded by Robinson, Way and Company Limited (exhibit xx) on 15 may 2009. This is a separate document headed Terms and Conditions with a reference number hand written on the first page. In the Particulars of Claim reference is made to ‘the terms of an agreement’. There are no terms and conditions attached to the Short Application Form; the prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.

 

12. The defendant refers 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."

 

13. 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.

 

14. Notwithstanding point 13, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order. Whilst the Short Application Form has been signed, it does not contain the prescribed terms referred to in point 10.

 

15. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with:

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

16. 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.

 

17. With regards to the Authority cited in point 16, reference is made to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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."

 

18. Therefore it is respectfully requested that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

19. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, it is requested that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit xx1) unenforceable.

 

20. In addition, should it be 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 is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

The Default Notice

 

21. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

22. In the Particulars of Claim it is averred that the Default Notice was issued on 5th September 2003. The date of the notice is the seventeenth day of August 2003 (a Sunday); this is the date of service of the said notice. The notice clearly states that the breach must be remedied within 10 days of the date at the top of this letter, thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561), as explained by the Interpretation Act 1978 in point 24.

 

23. The Defendant denies that the Notice upon which the Claimant seeks to rely was a notice complying with the Act in that it contained inaccurate information as to the precise amount claimed and failed to provide the Statutory 7 days from date of Service for remedy of the alleged breach. The Defendant therefore avers that the Notice was fatally flawed and therefore invalid.

 

24. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2.'Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post." The Defendant therefore puts the Claimant to strict proof of mailing any such notice & material evidence of the date on which that mailing took place. Without such evidence it is impossible for the Claimant to proof that a default notice was effectively served & that the time permitted for remedy of the breach was sufficient to comply with the above legislation.'

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” the second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

25. The Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

26. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid, to quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default.

 

The Notice of Assignment

 

26. It is averred that the Notice of Assignment supplied by the Claimant fails to comply with the law & associated regulations covering such actions, that is The Law of Property Act 1925 S136 & S196(4).

 

27. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

28. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that the defendant is entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

29. It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

30. The Notice of Assignment attached to the Particulars of Claim (exhibit xx 2) differs in content and style from that which was received by the defendant (exhibit xx 3). The court’s attention is drawn to the phone number on exhibit xx 2, which was not used by Robinson, Way and Company Limited until the latter part of 2008.

 

31. The Defendant avers that the Claimant is attempting to mislead the court in providing visibly amended documentation. Therefore in order to establish the authenticity of any alleged assignment of this debt, the Defendant requires sight of the Deed of Assignment.

 

32. The claimant seeks to claim interest ‘at the rate pursuant to the agreement namely £xxx and continuing until judgment or sooner payment at the daily rate of £xxx or in the alternative interest pursuant to Section 69 of the County Courts acts 1984; also interest at the rate pursuant to the Agreement from the judgment date until payment’. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974. This sum is therefore denied.

 

33. In view of matters pleaded, the defendant respectfully requests the court give consideration to striking out the claimants case pursuant to part 3.4

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

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

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

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

 

34. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 12, 16 and 17 of this defence. Without production of the requested documents the case cannot be dealt with just y and fairly, and will severely prejudice the defendant’s right to a fair trial.

 

35. 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 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

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

 

Date

..

Edited November 27, 2009 by cymruambyth

[cymruambyth]

Foolishgirl, once again thank you very much for your help, I'll make the amendments tomorrow and print 3 copies.

citB thank you for everything.

[cymruambyth]

My mind is officially scrambled:eek: Can you please confirm I send 2 copies of defence, 1 to court signed and 1 unigned to Rob Way?

Thank you

[cymruambyth]

Thank you

[cymruambyth]

Final last question ........ should I include a copy of my DN as an exhibit or wait until court ?

Thank you

[cymruambyth]

Thank you again

[cymruambyth]

Phew, I'd just done a final proof read and thought I had just done last print run, so it's not too late. Will amend tonight for posting tomorrow.

Thank you, dealing with a defence on this one and aws on another.

[cymruambyth]

Thank you everyone for all your help. Amended, printed, sealed and ready for posting.

[cymruambyth]

Don't apologise, I'm grateful for all your assistance and yes POSTED, 1 down 2 to go.....

[cymruambyth]

General Form of Judgement or Order

Upon reading the court file

And upon no defence appearing to have been filed

And upon no signed defence appearing to have been served

IT IS ORDERED THAT

Claimant may apply for default judgement

This was dated 4 February

Order dated xx March.

[cymruambyth]

I have proof of delivery.

I am sure it was signed. Could this mean that the unsigned one was sent to court? There was a statement of truth.

Or could this mean that court have misplaced the defence?

I have phoned court who suggest I send a new defence to court and proof of postage.

Any suggestions gratefully.

HELP

[cymruambyth]

Thank you for replying so quickly (as you no doubt realised I wasn't worried:D).

Everything being done, this time I may phone court to confirm receipt.

[cymruambyth]

Yes a lesson learnt. In my innocence I thought proof of delivery sufficient. To add insult to injury I have been phoning the court who kept on saying that the case was with the DJ

[cymruambyth]

Just a brief update.

It has arrived, has been logged on the computer and will be going to the line manager to see if they should put it before the DJ. Will phone again in a couple of days. I'm very polite and grateful:rolleyes:

[cymruambyth]

I just love my local court:p They are very busy and nothing appears to have been done ......... I can apply to have it set aside if it does go to judgement:(

Oh yes, if they had less phone calls to answer, they could complete their work:rolleyes:

[cymruambyth]

Thanks FG, I'm loathe to harass them but it does to be slightly farcical, so I can add that to tomorrow's jobs.

[cymruambyth]

Spoken to court again, couldn't speak to manager. I'm no further forward, yes letter has been received but I don't think anything has been done about it! Suggested N244 and £40 to set aside the order. The court believed that DJ had seen defence but stil said

 

General Form of Judgement or Order

 

Upon reading the court file

IT IS ORDERED THAT

Claimant may apply for default judgement

 

This was dated X February

Order dated xx March.

 

This is the amended POC that we were working from

Their letter

1 These POC are served in substitution of Claim Form issued XXX

2 The claimant is a collection agency and has taken an assignment of the agrement referred to hereafter. At the material times the aDfendant was a customer of Car 1. Pursuant to the t & c of an agreement Cap 1 provided a credit card facility to the defendant on the basis that the balance would be repayable upon demand. A copy of agreement is attached (short application form, no t&c)

3. The dn was issued 2003 for £XXX

4. By deed of assignment in XXX made between the claimant and cap1, cap1 assigned its interest in the agreement to the claimant. Byletter datedxxx the claimant served notice of the assignment upon the defendant, a copy attached.

5. Following such assignment, the claimant made a formal demand for payment of the balance due under the agreement in th sum of £XXX in XXXX. despite such demand, the defendant failed to pay the full amount and the claimant thereforeclaims the sum of £XXX.

6. The claimant also claims interest etc s 69.

 

And this is the defence submitted

 

Between

xxxxxxxxxxx- Claimant and - Defendant Defence

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

2. At the point where a defence was required the defendant was not in possession of documents from the claimant, which were vital to their ability to defend this action and placed them at a distinct disadvantage. cannot be dealt with just y and fairly, and will severely prejudice the defendant‟s right to a fair trial.

etc

etc

etc

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 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

Statement of Truth I xxxxxxxxxxx, believe the above statement to be true and factual Signed ..................... Date

 

HELPPPP

Edited May 12, 2010 by cymruambyth
Discretion.......

[cymruambyth]

Thanks, couple of questions

 

Is this sufficient for what order etc

Set aside the Order made on x February 2010 and dated x March 2010 as a defence had been filed within the time required.

Do I want a hearing? How long, I've guessed 1hour 30 min.

 

I'm not applying for an order.

 

For what information I'm relying on, state the facts as evidence and attach copy of defence?

 

Sorry if questions are very basic, but feeling a bit neurotic!!!!

Edited April 1, 2010 by cymruambyth

[cymruambyth]

Information being relied upon:

On xxx Robinson Way and Co submitted an amended particulars of claim as directed by District Judge X. I was required to submit my defence by the x December 2009. On x December 2009 the attached defence was signed for by the court. I have also attached a copy of the proof of sending and proof of delivery using Royal Mail Special Delivery.

 

Order I am asking from the court:

I am requesting the set aside the Order made on x February 2010 and dated x March 2010 as a defence had been filed within the time required.

I am also respectfully requesting the costs of the application.

 

Forgot to add the court suggested that this may have to go to another court as it isn't actually my local court!!!!!

[cymruambyth]

N149 has arrived

[cymruambyth]

Yes the wheels of justice move slowly ............ but at least they are now moving:)

[cymruambyth]

Judgement was set aside, defence accepted and transferred to my local court. N149 submitted. Wheels still moving slowly.

[cymruambyth]

Rob Way have to return their N149 and pay the money or claim will be struck out.

Waiting but not holding my breath!

[cymruambyth]

Filed