CL Finance -County Court Claim HELP

[robin1980]

Thanks ! The date of issue is 05 MAY 2009. I have done the acknowledgement / defended online. When is my 28 days up?

[citizenB]

Information given incorrect and therefore removed - apologies. x

Edited May 18, 2009 by citizenB

[creditcardmug]

Thanks ! The date of issue is 05 MAY 2009. I have done the acknowledgement / defended online. When is my 28 days up?

 

So what did you write as your defence, and when did you file it?

[robin1980]

Whoops Sorry I haven't defended just acknowleged!!

[r&b]

defence due 28 + 5 days..so fri 5th june as 7th is a sunday

[creditcardmug]

Just posting this up again for reference,

 

The Claimant's claim is for the sum of £XXXX being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and HSBC Bank Plc under reference XXXXXXXX and assigned to the Claimant on the 15th December 2008 notice of which has been given to the defendant.

 

The defendant has failed to make payment in accordance withthe terms of the agreement and a defulat notice has been served upon the defendant pursuant to section 87 (1) of the consumer credit Act 1974.

 

The claimant claims £ XXXXX

[creditcardmug]

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxxxx - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

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

 

 

 

The relevant Act of Parliament in this Case

 

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

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

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

 

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

 

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

 

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

 

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

 

 

 

 

The Request for Disclosure

 

9. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

10. To date the claimant has not replied

 

11. 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 which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

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

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

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

 

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

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

 

 

17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

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

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

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

 

 

Conclusion

 

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

 

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

 

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

 

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

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxxxxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

[creditcardmug]

Send to the court by Special Delivery, don't bother sending a copy to the other side

 

Put the date in point 9, attach a copy of your CPR letter.

 

Fill in the xxxs

[robin1980]

That is Great Thanks!

[robin1980]

So what should I expect to happen once the defence is sent?

[creditcardmug]

They get 28 days to decide whether to continue, if they dont the case is stayed, if they do it will be transferred to your local court, and you will get a form to fill in called a Allocation Questionnaire

[robin1980]

Do I need to complete and send the section of the claim form "Defence and counterclaim (specified amount)" or do I just send the defence as above ? Please help I need to make the post today.

Edited June 3, 2009 by robin1980

[creditcardmug]

You can send as is, as long as you sign/date the statement of truth, and the claim number is on it, or you could just write on the court form, "see attached defence".....the main thing is you are not late with it!

[robin1980]

OK thats great thanks, should i note in the defense that I have continued to pay, not received the assigment or default letter or should I wait and see if they tell cl to send me the documents I requested?

[robin1980]

OK the defence has gone special delivery to be there tomorrow. fingers crossed!!

 

Thank you for your help, I guess it's now wait and see!!

[creditcardmug]

Just wait and see now, they have at least 28 days, if nothing phone the court for an update in a months time

[robin1980]

Ok, great thanks. Ive had no response from Cohens, I thought they would of had a response so far regarding the payments at least!

[robin1980]

And finally I get a response..... its a settlement of £8000 by consent order monthly payments of £40 which is less than I was paying ?? Nothing about the defence, proof of payments to HSBC. I think this is just an effort to get me to confirm that they have a claim against me 3 days for their 28 days are up.

[robin1980]

Text from Letter

 

In particular we refer to the defence you have made against the above proceedings.

 

In an effort to bring this matter to a satisfactory conclusion our client is prepared to accept payment of £XXXX by instalments of £xx per month, subject to a consent order which will avoid entry of a county court judgment being registered against you.

 

Then they have enclosed three copies of the Consent order.

 

BY CONSENT

1. The parties having agreed the terms of settlement in the schedlue attached hereto, all further proceedings in this action be stayed save for the purpose of carrying into effect the terms in schedlue hereto.

 

2. There be no order as to costs

 

3. Liberty to apply.

[oneofakind]

Robin, I don't think you should be signing this.

 

The Consent Order is a legally binding document: it will be sent to the court, and the situation is basically, 'yes, I admit the debt, and this is how we are settling it between us.' Should you default on the arrangement, the CCJ will click into place.

 

Have you received all the details you requested from HSBC/ Cohen's yet?

 

I suspect they know they cannot make a case against you, and have tried to 'buy you off' with this offer.

 

[creditcardmug]

Robin, I don't think you should be signing this.

 

The Consent Order is a legally binding document: it will be sent to the court, and the situation is basically, 'yes, I admit the debt, and this is how we are settling it between us.' Should you default on the arrangement, the CCJ will click into place.

 

Have you received all the details you requested from HSBC/ Cohen's yet?

 

I suspect they know they cannot make a case against you, and have tried to 'buy you off' with this offer.

 

 

Agreed, its a last ditch attempt to get you to pay,they know they have nothing, ive seen it on here a few times lately...my advice, ignore it

[diamondgirl]

No don't sign it I had a similar type of letter from Link and I refused to sign it. The case got struck out in court.

 

DG

[I've got no money]

No don't sign it I had a similar type of letter from Link and I refused to sign it. The case got struck out in court.

 

DG

 

I would agree with that