Cabot Claimform - goldfish card

[thesecret]

Hi

I initially had an agreement with Morgan Stanley for a Credit Card and requested a copy of my CCA, which they responded with a copy of my application form and a copy of terms and conditions.

Links Below.

I responded with a letter issued on here stating what it was and that it was not a CCA.

Correspondence stopped.

The debt was then passed to APEX who were sent the same letters asking for a copy of the CCA. Nothing received, correspondence stops.

At this point Goldfish were now corresponding for a Morgan Stanley account. Again the same CCA letters sent.

Correspondence stopped.

Goldfish then passed it over to Barclaycard who have issued it through Solicitors into Northampton county court.

I dont know what to do next?

As far as im concerned ots unenforceable, i need a defence, i have seen one which seems to fit the bill on samcook1703, i will post the link however i feel it may need tweaking due to the changes of hands with who is pursuiing the debt

 

 

http://i495.photobucket.com/albums/rr314/samcook1703/morganstanleycopy-1.jpg

http://i495.photobucket.com/albums/rr314/samcook1703/Agreementcopy-1.jpg

http://i495.photobucket.com/albums/rr314/samcook1703/Agreement0001copy-1.jpg

http://i495.photobucket.com/albums/rr314/samcook1703/Agreement0002copy-1.jpg

http://i495.photobucket.com/albums/rr314/samcook1703/Agreement0003-1.jpg

http://i495.photobucket.com/albums/rr314/samcook1703/Agreement0004copy-1.jpg

[thesecret]

Heres the defence i have found, your comments please, i may need to add/remove. I dont think i have missed anyhting

 

 

 

 

In the xxxxxxxx County Court

 

Claim number xxxxx

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxx - Defendant

 

 

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

 

DEFENCE

 

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

 

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

 

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

 

3. 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 as required by CPR Practice Direction 16 paragraph 7.3.

 

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.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974.

 

6. The claimant complied with this request by sending a copy of a signed application form and a copy of unrelated terms and conditions. Whereas this complies with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, it does not satisfy the requirements of s61 of the Consumer Credit Act 1974 for a properly executed agreement in either form or content. Therefore, by virtue of s65 of the Act, the supplied copy agreement may only be enforced by a court.

 

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 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.

 

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 under which this agreement is regulated.

 

 

The requirement for the executed agreement to be brought before the court

 

10. 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

 

11. 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)

 

12. 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

 

13. 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

 

14. 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."

 

15. 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

 

16. Notwithstanding point 19, 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

 

17. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on xx/xx/2007 as laid out above.

18. Further, under CPR Practice Direction 16 paragraph 7.3 an original of the agreement must be produced in court. There is no provision that an agreement containing the prescribed terms may have existed or that the balance of probabilities are that such an agreement existed.

The courts power of enforcement

 

19. 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).

 

 

20. Further more 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

 

21. With regards to the Authority cited in point 16, 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.

 

22. 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.

 

23. 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.

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

24. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant 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

 

25. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

Conclusion

 

26. In view of matters pleaded, I respectfully request 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.

 

27. 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. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

28 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.

 

29. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence when the claimant produces the requested documentation and I am given sufficient time to inspect the documentation

 

 

Statement of Truth

 

 

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

 

 

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

 

Dated this xx th day of xxxxxx 2008

[noomill060]

Have any overlimit or late payment charges been applied to your account in the past?

[thesecret]

I have had a couple of late payment charges

[noomill060]

How many is a couple?

[thesecret]

I would say five or six I do nat have the most recent statements as they have not sent any out to me in ages.?

Since requesting the agreement in fact.

I am currently unemployed and a have not paid them so I am sure they are accumilating charges.

[thesecret]

The last statement was January 08 and there is a charge on this statement.

[noomill060]

You should send them a SAR and get all your statements going back to the year dot.

 

Then you can find out how many charges you have and take action to recover them- including all interest levied on them.

[slick132]

Hi TS,

 

The fact that the total claimed from you includes unlawful penalty charges should be raised in your defence, when Filed at court.

[noomill060]

Exactly- the best defence is a counter claim.

[thesecret]

Hi guys/gals,

Thanks for your support

I will send a SAR immediately, my only concern is that this has been put into court and i received the claim form on 17th Nov 08

AoS needs to be in on 1st December giving me til the 15th Dec to get my defence in.

Will they respond in time with my charges? will have to find out

 

TS;)

[slick132]

You should work on the basis that you won't receive their reply before your Defence is due in court.

[thesecret]

Ok, will do

Does the defence i have sourced need to b etweaked or a new one written?

Thanks Slick

[noomill060]

I notice from your application form that you ticked the Payment Protection Insurance box. Did you receive any information as to what this actually covers and what the exclusions were?

 

If not this policy may have been missold and you can claim all the PPI premiums back along with all the interest levied thereon!

[slick132]

Hi TS,

 

Any letter or other document needs to be carefully tweaked to reflect your own case.

 

This is even more important when it's a court claim or defence doc't. Take out all that doesn't apply to your case and ensure anything relevant is included.

 

I've moved the HSBC posts to avoid them confusing anyone (well, me really).

Edited November 24, 2008 by slick132
typo

[thesecret]

Before i send anything in will someone be able to help go through what i come up with?

[slick132]

Post it here so folks can take a look.

 

[thesecret]

Am i right in thinking that what i have received does not comply with a CCA request?

I have received a copy of current terms and conditions but am not sure what to make of it

I also received a copy of financial and related conditions

http://i495.photobucket.com/albums/rr314/samcook1703/Agreement0003-1.jpg

Can i have clarification as to whether this is enforceable?

I will have a counter claim but this information will not reach me priior to the court date.

Some advice please!!

TS

[thesecret]

..

Edited November 30, 2008 by thesecret
repeated post

[slick132]

tidying thread

[slick132]

Hi TS,

 

I've asked for comment on the 4th doc't posted in your post #1 above.

 

I think this is more relevant than the T&C's in post #18.

 

Have you acknowledged receipt of the claim against you and confirmed that you dispute the whole amount.

[thesecret]

Thank you and yes AoS in with dispute full amount

[slick132]

Hi TS,

 

Two Site Team members have checked the credit agreement and have said:-

 

"No prescribed terms therefore unenforceable."

 

You should therefore File and Serve your defence as necessary, adapting the defence to suit your case.

[thesecret]

Thanks will do

[thesecret]

In the xxxxxxxx County Court

 

 

Claim number xxxxx

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxx - Defendant

 

 

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

 

 

DEFENCE

 

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

 

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

 

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

 

3. 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 as required by CPR Practice Direction 16 paragraph 7.3.

 

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.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974.

 

6. The claimant complied with this request by sending a copy of a signed application form and a copy of unrelated terms and conditions. Whereas this complies with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, it does not satisfy the requirements of s61 of the Consumer Credit Act 1974 for a properly executed agreement in either form or content. Therefore, by virtue of s65 of the Act, the supplied copy agreement may only be enforced by a court.

 

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 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.

 

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 under which this agreement is regulated.

 

 

The requirement for the executed agreement to be brought before the court

 

10. 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

 

11. 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)

 

12. 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

 

13. 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

 

14. 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."

 

15. 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

 

16. Notwithstanding point 19, 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

 

17. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on xx/xx/2007 as laid out above.

18. Further, under CPR Practice Direction 16 paragraph 7.3 an original of the agreement must be produced in court. There is no provision that an agreement containing the prescribed terms may have existed or that the balance of probabilities are that such an agreement existed.

The courts power of enforcement

 

19. 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).

 

 

20. Further more 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

 

21. With regards to the Authority cited in point 16, 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.

 

22. 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.

 

23. 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.

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

24. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant 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

 

25. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

Conclusion

 

26. In view of matters pleaded, I respectfully request 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.

 

27. 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. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

28 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.

 

29. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence when the claimant produces the requested documentation and I am given sufficient time to inspect the documentation

 

30. A counterclaim will also be entered when the Subject Access Request is fulfilled by the claimant for unlawful penalty charges added to the account.

 

Statement of Truth

 

 

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

 

 

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

 

Dated this xx th day of xxxxxx 2008