Halifax ordinary cause for old Bank One Credit Card Debt **decree of dismissal was granted + Costs**

[Coactum]

Please refer back to this thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/203269-introduction-background-my-debts.html to my debts where I was advised to start different threads for each account. This one addresses my Halifax Card which was originally issued in 1999 as a Bank One Platinum card.

 

All that has been supplied via Blair Oliver & Scott acting for HBOS is a copy of the original application form. This is signed by me on 8/10/99 and stamped as received by them on 09/10/1999. From what I have read elsewhere on this forum this is not a valid agreement. I wrote back on 15/5/2009 advising them:

 

“I refer to communications received from Blair Oliver and Scott acting under your instruction and draw your attention to past communications in connection with the above accounts. I suggest that you pay close attention to what was requested and review what you sent because what you have supplied to date is not the data requested.

 

Once again I refer you to my letters of 2nd and 21st April and in particular my remarks regarding your failure to comply with section 78(6) of the Consumer Credit Act 1974. I informed you that your failure to comply had placed my accounts into dispute and that this meant that you were not entitled to default or enforce the agreement until your breach has been rectified.

 

I also issued you with a statutory notice under section 10 of the Data Protection Act instructing you to cease processing any data in relation to this account with immediate effect.

 

At this moment in time you have not complied with the aforementioned requests and may be committing a criminal offence.”

 

All has gone quite since.

[Reader]

Hi Coactum, I am quite new tto this but....

 

If they don't comply to your CCA Request, write to the Information Commissioners Office regarding their non compliance to your request.

You can also complain online.

 

Secondly complain to the Office of Fair Traiding regarding them ignoring your dispute and their debt collecting procedures, you can also do this online via the Consumer Direct Website. There are some guidelines that they are in breach of, but haven't got time at the moment to find that out as getting ready for work. If anyone else is looking can you advise?

 

When you send any letters to Halifax put a CC at the bottom of the letter just so they know that you have complained, that is what I have done.

 

Reader

[Coactum]

In today’s mail I have a letter from Blair Oliver & Scott which reads:

 

Your repayment arrangement of £1.00 is now due for review. It is important that you contact the helpline number below to discuss your monthly payments.

 

Please have your income and expenditure at hand for our collection specialists to assist you.

 

We note that repayments on your account have been maintained in line with the existing arrangement. Please continue to pay while this review is undertaken.

 

Now what is strange is that I have two of these letters, one for my BOS account and another for my Halifax, however, at no time did they ever accept my proposal to make only a token gesture payment. Furthermore, I have not paid them anything since 6th March when I paid £70 to each of these accounts.

 

They have so far failed to adequately address my CCA request. In the case of Halifax the sent the original Bank One application form which does not contain the correct data within the page and in the BOS case the application is so old it fails to even state that it is a credit agreement.

 

Any suggestions on how I should respond would be appreciated.

 

Following my letter advising Halifax and their agent Blair Oliver & Scott that so far nothing had been provided which remotely resembles a Credit Card Agreement they sent yet another copy of my application form. Please look at the attached and tell me if you think I’m missing something because I do not think this is a valid enforceable agreement, do you?

 

Hmm, how do I attach my scans?

 

I still have a current account with Bank Of Scotland and noticed transactions for Cash £1 dated 8th May and 15th June. I have no idea what these are but suspect that they are just automatically taking money from my account, which explains the £1 referred to in the letter.

 

Some time ago Blair Oliver made some vieled threat about offesting other money i had but I thought I'd put an end to that with the warning I gave them, but perhaps this is not so.

 

Any Ideas?

[silverfox1961]

Hi,

As you are now in dispute with them, I would get a new account with another bank not related to the halifax or its parent company. They will take money from one account and place it in another to pay your debts.

 

Here is a how to so that you know how to post up scans:

 

It seems tricky at first, but is fairly simple really.

 

1, Scan your DCA letter/whatever you want to show on the forum.

Ideal setting is 100dpi as it's closest to computer monitor display resolution.

 

2, Save the scanned image as a jpeg

Step 2.5 Edit out any personal information, barcodes or any other comments, notes or markings around the edge of the document. Never change the original document you received

2.5, Load the saved image into MS Paint. (comes free with Windows.) Use the pain brush or spray can to remove/paint over any personal info, such as name, account number, address, etc. Also remove any barcodes, as some DCAs may be able to identify you from these.

 

3, Create an account on Photobucket.

 

4, Once you have a Photobucket account, you'll find on the main webpage little box where you can upload photos. Click the "upload image" box and then tell it where on your hard disk you saved your scanned jpeg. It will then upload the image to Photobucket and it will show you thumbnails of the images you have uploaded. Under each image there are links that you can copy and paste.

 

5, Copy the IMG link below the image you want to put on the forum. Then reply to thread on CAG. Right click with the mouse and select "paste" from the little menu that pops up.

 

6, You'll then get some text appear in your message that looks a bit like this.

 

www.%20photobucket.com/fuzzybobbe/imagename.jpg%7B%5CIMG

 

When you submit the reply, the text will change into the image you uploaded onto photobucket. The text you copied and pasted is just the information the forum needs, so it knows where to find your photo and display it in your message.

 

 

Courtesy of Fuzzybobble

--------------------------------------------------------------

 

It is easy

 

fox

[Coactum]

Thanks Silverfox, but i had thought i could upload here, I've need to create accounts elsewhere as I can easily accommodate images in other online facilities that I have

 

I have added the images to another hosting account I have and so here they are:

 

http://my-web-domain.com/coactum/bank_one_1.gif

 

and the reverse side

http://my-web-domain.com/coactum/bank_one_2.gif

 

I welcome your comments on the validity of the aledged agreement.

 

Could someone please comment on the legality or otherwise of these scans?

 

bump

[Coactum]

Got a letter today from Blair Oliver & Scott which thanks me for renewing my £1 per month reduced payment plan and reminds me that HBOS may attach any other funds i have with them.

 

Strange thing is that I never contacted them to make any arrangement because i do not consider my CCA request to have been satisfied and therefore the account is in dispute, but I guess this does explain the spurious £1 that have been taken from my account.

[Coactum]

I really need some guidance urgently!

 

I have just received a citation from the Sheriff Court. Halifax have raised action against me but there are a number of aspects to this that I need clarified before responding.

 

1. Look at the bank ne Application above and give comment regarding its legality as a Consumer Credit Agreement.

2. The Citation is dated 14th October and states

“Grants warrant to cite the defender by serving upon him a copy of the writ and warrant, with form 03, on a period of notice of 21 days and Ordains him if he:-

a. Intends to defend the action....

b. Admits the claim ...

Etc”

 

As this was only received today 11/11/2009 i.e. 38 days later is this in itself valid?

[IdaInFife]

incase i am missing them

 

is there any cancellation rights?

 

do you have a default notice?

 

I would contact the court asap and advise re only being received - probarbly the postal strikes etc to check the status

 

 

Ida x

[Coactum]

There is a box headed YOUR RIGHT TO CANCEL just below my signature.

 

I have been through all letters from Halifax, Blair Oliver & Scott etc and at no time have they sent a Cancellation notice.

 

Postal disputes is nothing to do with it. There are other documents enclosed dated as at yesterday.

 

Here is what I have:

Form 05 – The citation. Dated yesterday

Initial writ – an Ordinary Action outlining the condescendence etc. No date but the outstanding balance has a stated date of 5/10/09

Form 02 – Form or warrant of citation etc. This part is dated 14/10/09

Form 07 – Notice of intention to defend

Form 03 – Time to pay plus notes

[Monty2007]

Hi Coactum

 

You need to submit From O7 (notice of intention to defend) and pay the fee, I think this is £80. You will then get a schedule of dates that define the early phases on the ordinary cause process.

 

Your application does not look like an enforceable agreement to me, but take a look at similar agreements from Halifax taken out around the same time, I am sure there will be some but in England.

 

I am able to help you on the ordinary cause process having been through this myself, it looks daunting at first but is actually easier than the CPR process in England (IMO).

 

Can you post up the full wording of their summons, there should be a part called condescendence's that are numbered. Once you submit your defence you will need to reply to each one, it can be as simple as admit or deny and leave the onus on them to prove but for CCA it is best to have a more substantive reply based on the Act.

 

You should also have a read of:

 

Civil Procedure and Practice (Green's Concise Scots Law) (Paperback) by Charles Hennessy.

[Coactum]

Thanks for your input Monty2007, I'll get busy with the scanner and tipex and have all online asap

 

I've made copies of the first 5 pages. The remainder are standard stuff to be used to submit my response.

http://my-web-domain.com/coactum/citation-1.gif

http://my-web-domain.com/coactum/citation-2.gif

http://my-web-domain.com/coactum/citation-3.gif

http://my-web-domain.com/coactum/citation-4.gif

http://my-web-domain.com/coactum/citation-5.gif

 

I have already sent a response to the solicitors and found in the process that the reply address is actually the Bank of Scotland.

 

This was sent recorded delivery and was largely based upon the suggested format Idainfife gave on http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/195822-m-more-court-papers.html

 

This is a request for all data that they might chose to use in the case.

 

I guess that I should consult a solicitor next but feel that before so doing I need to know precisely what me defence will be because I tend to find that the legal profession have a nasty habit of overloading their workload and unless you have spelt out every minute detail for them they are inclined to miss an opportunity. That is why I’d prefer to rely upon advise giver herein in the first instance.

[Monty2007]

Hi Coatum

 

Back in 2007 when I received mine I contacted about 5 Scottish law firms and all but one told me to admit since the Pursuer would win. The one that agreed to defend wanted £5 K up-front. I decided to defend myself, bought a copy of Hennessey and spent a few weeks in the Mitchell Law library through in Glasgow. It was worth it.

 

Their writ is basic and your defence will be likewise, I don't think a solicitor could give you any advice other than what you will get on here. It is your choice though and going to court is not a challenge for everyone. If you are prepared for a fight which will last about 6 months then stick with it. If you seek legal advice the cost will be at least £5 K according to the firm that quoted me.

[Coactum]

Many thanks for the suggestion Monty2007. In light of my present financial predicament I expected that I would qualify for legal aid, but if so and the solicitor recommends accepting the claim does this mean that legal aid will cease?

 

I’m off to read up on your case. I note it was a few years ago, but once i spot any similarities perhaps I can return and ask you for more advice.

 

I note in the second post within this thread that I should have sent my request to the court rather than the pursuers solicitor.

 

http://www.consumeractiongroup.co.uk/forum/scotland/173207-equivalent-cpr-31-16-a.html

 

In light of this I'm going to reply to the court in the morning and enclose a copy of that letter. Anything else I should do at this stage?

[Monty2007]

My original thread was removed as part of an agreement.

 

The cpr thread was way back when I was searching for a route for document disclosure having just moved up here.

 

In Scotland the process for small claims and summary cause actions is through serving the other party an "Incidental Application".

 

However for Ordinary Cause, as in your case this is done through a "Motion".

 

Motions can be served by a solicitor or a certified bailiff, alternatively you can serve a "motion at the bar" when the case calls before the Sheriff. I served all my motions at the bar and it worked very well..............

 

Sorry, I don't know anything about legal aid, you will have to contact them directly.

[Coactum]

I know all about motions. I had one today shortly after the post arrived!

 

This is what Legal Aid say on their site:

Quote

Civil legal aid will provide funding for a solicitor to put someone's case in court. It covers the preparation work, as well as the hearing itself, and can provide funding for advocates, experts etc. (Most cases begin with advice and assistance, and civil legal aid may be the next step if necessary.) Here are some examples of issues that civil legal aid might be able to help with:

 

divorce and other matters affecting family and children

 

actions for compensation for injuries resulting from an accident, or medical negligence

 

housing matters such as rent or mortgage arrears, repairs, eviction

 

debt

 

immigration, nationality, or asylum.

The opponent of someone who has applied for civil legal aid has the right to object to the application for, or grant of, civil legal aid.

 

The Board assesses all applications in the same way and we must follow rules set down in law by Parliament. To be granted civil legal aid, all of the following tests must be met by the applicant:

 

they must qualify financially

they must have a legal basis for their case, sometimes called probable cause

it is reasonable in the particular circumstances of the case that they should receive legal aid

financial help is not available from someone else – like a trade union, insurance company or professional body.

 

So, it would seem that the bank can object to my application and halt it in its tracks even if I qualified.

Edited November 11, 2009 by Coactum

[IdaInFife]

thanks Monty

[Monty2007]

Hi Coactum

 

I attach a draft defence for you. You need to ensure that you serve this on the Pursuer's agent(s) and the court. Ensure you send via next day guaranteed delivery and use the exact address as on their initial writ.

 

You will need to produce copies of the statues within your first inventory of productions, if it gets that far (post Options hearing). In the meantime read around the threads and become familiar with the angles with respect to the agreement and case precedents.

 

Did they serve a default notice and termination notice on you? If so post these up minus the personal details.

 

Are there any charges on the account that you wish to re-claim? If so you will need to quantify these and submit a counter-claim with the defence.

 

Have you done a SAR on them, useful since we don't have CPR in Scotland so document disclosure is a bit more complex.

 

How did they supply the agreement? was it via a Section 78(1) request?

 

You have plenty of time and you will find that it does go slow, sufficient for you to get up to speed.

 

 

Court Reference Number: xxxx/xx

 

 

SHERIFFDOM OF Xxxx AT XXXXXX

 

 

DEFENCE

 

in causa

 

Their name & Address as on the writ

 

PURSUER

 

 

against

 

 

Your name and address

                                                                                   

                                                                                                            DEFENDER

 

 

 

1.                     This is admitted.

 

2.                     This is denied.

 

It is explained that the documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) of the Act, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

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.

 

It is explained that the documents supplied by the Pursuer do not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1)(a) of the Act. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable as is the judgment of TUCKEY LJ in the case of Wilson and Anor 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 Schedule 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 s61 that all the terms should be in a single document, and backed up by the provisions of s127(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."

If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1)(a) of the Act, the consequences of which means it is improperly executed and only enforceable by Court order. Notwithstanding this point, the Agreement must be signed in the prescribed manner to comply with Section 61(1)(a) of the Act. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

I now wish to make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch).

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach…

Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…"

The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

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

 

Section 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).

 

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.

With regards to the Authority cited above, 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.

 

It is also explained that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for agreements made before Section 15 came into effect. Since any agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and hence the Consumer Credit Act 1974 is the relevant act in this case.

 

The Consumer Credit Act 2006, Schedule 3, Transitional Provision and Savings:

 

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

(c)    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.

 

 

3.         This is denied. The Pursuers have failed to supply an enforceable agreement as prescribed under the Act.

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach…

Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…"

The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

 

 

PLEAS-IN-LAW

 

1.       The purported credit card agreement provided by the Pursuer to the Defender does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such are unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreements supplied by the Pursuer as unenforceable.

 

2.       Accordingly, given the Pursuer’s averments are irrelevant et separatim lacking in specification, the action should be dismissed.

 

3.       The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

In respect whereof

 

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

 

 

Date: xxx November 2009

 

Your Name and Address

 

 

                                                                                    DEFENDER

[beetle1234]

Coatum.As Monty says you have plenty of time to defend but you do need to make all parties aware that you have only just received this writ (presume it came registered post and you signed for it?) You do need to start digging out EVERY piece of paper you have ever kept relating to this account though starting with default notice which you should post up in the usual way....if you have not done so you need to SAR them immediately! In my opinion the application is no better or worse than my own M&S one was and with the help of many on the forum and Monty2007 in particular we won convincingly...things have moved on a bit since then and while there are never any guarantees of success some things remain the same...the biggest of these being that your bank or credit card company still view the threat of court as the ultimate scare tactic...how you now react is the key here...I and many others chose to defend it,others will give in (often in the hope of saving credit status or fear of the unknown in court) I will be interested to know if you manage to get Legal Aid to fight this but please do not rely on this as I too had conversations with solicitors when I got my writ and both they and Citizens Advice said "admit the claim and pay them as you will not win!" sorry to be negative but that's my experience ! On a positive note though I would argue from experience that if I get served a writ in future I would rather defend myself than let some negative git in a suit who has a hundred other cases on the go do it for me...especially if it WAS being done on legal aid as he gets paid either way ! Monty2007 has already provided a draft defence for you and any questions/worries or fears you may have can be dealt with as and when they arise. In my opinion if you choose to defend it may prove to be a lengthy process as I don't see too many creditors rushing into courts at the moment in fear of possible losses and repercussions as a result...I believe later this month in English courts there are some significant test cases centred around the area of "non true copy agreements" scheduled to be heard that could effect many of us in future though if I was a betting man I would guess there is a good chance these hearings will be delayed ! Good luck and keep calm for now.

[Coactum]

Excellent Monty2007. I really appreciate your input and the draft letter.

 

To the best of my knowledge and belief no default or termination notice has ever been served and I have kept every letter and statement received dating back to Nov 2003, but I will double check this over the next few days to be absolutely sure.

 

Penalty charges have been added over the years and of course if I am calling into question the validity of the contract then I might reasonably question the interest rate applied. Looking at the application form (shown earlier in this thread) the reverse side illustrates interest rates relative to credit limits but as my card originally issued by BankOne had a limit other that the ones listed there may be an good argument to say this is invalid.

 

The application form was issued in response to a request I made under sections 77-79 of the Consumer Credit Act 1974. I have not SAR’d but as I have asked their legal representatives to supply all data that they plan to rely upon this should not be necessary.

 

Thanks beelte1234. Just one question. You like Monty2007 say SAR, but in my letter sent recorded delivery within hours of receiving the paperwork I asked:

 

As this case relates to an alleged Credit Card with Halifax bearing the number xxxxxxxxxxxxxxxx I require:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. A copy of the default notice which you client claims to have served together with any proof of posting and/or receipt.

3. All records held on me relevant to this case, including but not limited to:

etc., etc.

 

Should this request not force them to reveal all that they would have done in a SAR?

[beetle1234]

SAR exists for our benefit..it is the legal process used to ask for the info you have requested and whilst they MAY send you some or all of what you have already asked for and it MAY even arrive in time for any court date set there are no guarantees...if you do not receive all of the requested docs in time you will likely request delay of any hearing and you will tell them and the court the reason you are requesting delay is that you are awaiting documentation relevant to your defence...you will be expected to use (or have used)the proper legal route to obtain your docs which will also be your evidence and request by SAR (with payment of £10) is that route.

[Coactum]

Thanks for that advice beetle1234, I'll get onto that tomorrow (its a bit late at night now).

 

Monty2007 in the letter you kindly prepared you refer to a case of Wilson and Another v Hurstanger Ltd, however, I found this Wilson and another v Hurstanger Ltd which shows that the appeal was not quite I their favour.

 

Is it wise to refer to such a case or should I try to find something more recent and so far unchallenged?

[Monty2007]

Hi Coactum

 

The Wilson case I quoted in the draft defence is the same that has been used in all the other (successful) cases on CAG, I will read it again but I recall it was a relevant judgment.

 

You will need to include the fact that they have terminated the contract without serving you a default notice, this is important. They may try to submit a re-constructed one as part of their evidence. However through this action they have terminated your account so would have been required under the Act to serve a DN before doing so.

 

Irrespective of your requests, they will probably not supply you with what you want hence Beetle is correct in that you need to serve a DN notice on them. During my three years fight with a certain bank I did a SAR every 3-4 months just to see what they were up to, it proved very useful.

 

Use a template letter from here, send the statutory £10 via next day guaranteed delivery and they should comply within 40 days. Typically they are in no rush but you have lots of time so no worries there.

 

What is the last day for submitting your Form O7?

[Coactum]

I've not yet filed my defence but I have spoken to a solicitor friend and although court work is not his field of expertise he felt if anything that my proposed response was too lengthy for this stage of the process (it is 6 full A4 pages). In his opinion much of what I have used (from Monty2007’s letter above) is for the proof and that a more basic retort is all that is necessary at this stage. However, he is after all not really in a position to give advice on court matters so if anyone else has tread this path recently can you please put in your tuppence worth now because I plan to ledge my defence before this week is over.

 

I sent an SAR to MBNA at one time and what I got back was very poor. Indeed I was surprised at how little they claimed to have kept. They later sold that account and the dispute continues.

 

I have 21 days from the service of the notice, so that takes me to about 2nd December.

 

I plan to tweak the proposed letter to better suit my needs and then PM that to Monty2007 for feedback before submission.

 

I plan to give the full background to my case starting a decade ago when the Bank One application was made up until Halifax failed to provide a valid CCA and then continue with Monty2007’s suggested format. My intention is to help Halifax realise that although I am justified in my stance to suspend payment because their agreement is flawed and therefore unenforceable that I am not simply refusing to pay. I want them to fully appreciate that I cannot pay. Indeed I am struggling to raise the £80 needed to submit my defence! I want Halifax and their legal advisors to realise that even if they win it is unlikely that they will get anything from me. I'd hope that common sense might prevail and that they will drop this case before incurring further cost.

 

Is this wise? I ask because by making any reference to the card could this be construed as acceptance that an agreement does indeed exist? As I understand it a malformed agreement can only be enforced by a court and therefore by admitting any agreement am I opening myself to some vulnerability?

 

I have PM Monty2007 with my suggested reply and await his retort but in the meantime I welcome the views of others.

 

This is something I think most interesting. In Scotland only the Pursuer or their Solicitor can sign the writ but in the case of my writ copied above you will note that it is endorsed as if by solicitors but it has undoubtedly been prepared by Bank of Scotland and most certainly was posted by Bank of Scotland and as such an offence may have occurred. Please refer to this link BANK OF SCOTLAND v. IAN MITCHELL, 08 November 2001, Sheriff R.A. Davidson in particular where it states:

Quote

The Solicitors (Scotland) Act, 1980, as amended, is the primary legislation governing the regulation and conduct of the solicitor branch of the legal profession in Scotland. The starting point, in my opinion, for a consideration of the issues raised here, is section 4 of that Act. It provides that:-

" No person shall be qualified to practise as a solicitor unless-

a. he has been admitted as a solicitor; and

b. his name is on the roll; and

c. subject to Section 24 (which relates to solicitors in public service), he has in force a certificate issued by the Council (of the Law Society of Scotland) in accordance with the provisions of this Part authorising him to practise as a solicitor (referred to in this Act as a 'practising certificate.')"

It is an offence in terms of Section 23 of the Act to practise or hold oneself out as entitled to practise as a solicitor without having in force a practising certificate "unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly.

You will note in the copies on my writ above that the return address in not that of the Solicitors but the Bank of Scotland. As such I wonder as with the referred document

Quote

It appears to me that there may be, in the circumstances here, on the hypothesis that “in this case Bank Of Scotland” are not acting gratuitously, an offence being committed by the firm of solicitors in Glasgow by permitting the use of its name in the drawing or preparation of this writ.

 

What do you think. Am I off in a tangent here?

[Monty2007]

I am not sure where your solicitor friend is coming from. You have been served a summons and need to submit form O7 (notice of intention to defend) following by a defence within the prescribed period.

 

The defence can simply deny (or admit) each of the numbered condescendence's, however this will not look good when the final Record comes before the Sheriff at the Options hearing. It is in your favor to submit a full defence which is adjusted along with your preliminary pleas during the adjustments phase.

 

Is your solicitor friend aware that this is an Ordinary Cause action and not a Summary Cause or Small Claim?

 

What I posted up was not a letter, it was a Defence for your Ordinary Cause summons?

 

You may be better off getting a solicitor.

[Coactum]

Many thanks Monty2007. I did understand what you had provided and based my response on that together with the additional material I sent to you in a PM.

 

I have until the beginning of December and so think it wise to be absolutely sure of what I submit and plan to use the time between now and then to perfect my response.

 

My friend is a conveyancing solicitor and as I said he was very clear that he felt ill equipped to offer advice. He suggested I pay a visit to another Law Centre who have the required skills. I emailed them earlier today and await a reply.