Me v nationwide credit card claim - resolved by tomlin order

[myboro]

Hi,

 

Received a claim from Swindon CC for £7,226 for a credit card debt with Nationwide 13 July 2009.

 

Sent AOS and requested info from Nationwide

 

1. Copy of credit agreement
   
2. CPR 18 request (as seen in this forum)
   

Received agreement - copy attached. Now looking to file a defence based on them not replying to CPR 18 request.

 

The reply with the Agreement stated "Please note that we are compiling further information and I can confirm that no further action will take place until this has been provided to you"

 

As I was made redundant last year and we have unsecured debts of 35K we are looking at Bankruptcy.

 

So I am only looking to frustrate/delay as they have stated they are going for a charging order immediately.

 

Hope someone can help please as this forum has been a great source of help to me.

 

Many Thanks

Mike

Edited October 9, 2009 by myboro
Update Title

[diamondgirl]

Hi and Welcome

 

Well they can't get a charging order until they've taken you to court.

They have informed you in writing that they will not go any further until you have been provided with the details your have requested - so don't lose the letter. Also remember they only have a limited time to provide the details to you so count the days carefully and if they don't provide the details within the time frame then they are in default.

 

DG:)

[diamondgirl]

Just notices is the signature on the form yours. If so you need to remove it and any other personal info there. It is also quite hard to read as it is very small can you make it bigger.

 

DG:)

[myboro]

The signature is theirs I have removed my details. As for timescales well I need to file a defence this week. The CCJ is already in progress at Swindon Court.

 

I was hoping for specific help on what to put on the defence form as they have not complied with the CPR 18 request.

agreement.pdf

Edited August 3, 2009 by myboro
added pdf file

[diamondgirl]

Will ask a couple of great caggers to pop by.

 

DG

[foolishgirl]

Hi myboro

 

Well, if this is the agreement they are relying on for enforcement of your debt, it's pants . No prescribed terms (as far as I can see, copy not good) - totally unenforceable. Did they supply any T&Cs?

 

Before you compile your defence can you say (a) what exactly you asked for in your CPR request (b) did you head your letter 'Request made under CPR 18?

 

Also,

 

1. Have you ever received a default notice from Nationwide? If so, have you got it?

 

2. Have you ever had any charges applied to your account & not reclaimed them?

 

Sorry, lots of questions but it all helps your defence

[foolishgirl]

(as far as I can see, copy not good)

 

 

BTW did the copy come like this i.e. not fully legible or is it the pdf?

 

Also can you post a copy of the POC please (minus personal details)?

[diamondgirl]

Thanks for dropping by FG and I got your PM must go get ready for the daily slog.

 

DG:)

[myboro]

Hi FG,

 

 

1. CPR request was as below
   
2. Two defaults received dated 17th April and 29th April both attached
   
3. Its legible on the copy I have so probably my scan - it did also have T&C's attached which I have now added and are attached
   
4. I have never challenged any charges, have had some late fee charges at £12 in the past and recently. Together with default charges of £12
   
5. POC uploaded
   

Anything else needed, I have responded to nationwide regularly since being unable to make anything other than a token payment. As advised by CAB. Other creditors have stopped interest and charges accruing but Nationwide only did this immediately prior to going to court. Can I claim they have not followed reasonable behavior (pre-action conduct)

 

In addition is the immediate intention to go for a charging order an abuse of process? I know OFT has been looking at this and as I have made token payments and responded are they abusing the system.

 

Many thanks for your time FG

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

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. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX.

Full Agreement response.pdf

Default Notices.pdf

POC.pdf

[foolishgirl]

Thanks for the attachments. When does your defence have to be with the court?

 

First impressions - I'll answer more fully later when I have more time - is that not only is the agreement pants but so are the default notices on several counts, including them demanding the full balance on the account - they are only entitled to claim arrears i.e. the sum you would have been due to pay if you had made monthly instalments (I am assuming that this is not £7000+), also date queries re. service etc. But most importantly (for you & them!) is that as the last default notice before termination is defective, they are only ever entitled to the arrears at default. Work it out for yourself.

 

You would seem to have the basis of an excellent defence but you will have to really gen up on your knowledge of the CCA1974 & DNs as you will have to convince a DJ in a hearing that you know the law & that you are right.

 

If you read these threads, they may help you put tog. a defence:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/198657-advice-needed-imminent-court-2.html Post 40

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-5.html Post 85

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/153029-how-do-i-defend.html#post1628323 Post 16

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html Post 117

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what.html Post 13

 

 

Have a go with compiling the defence, post it up & I will input.

[myboro]

Thanks for that FG. Seems to make sense when I had a look through.

 

I will draft up a defence and put it up for opinions. May take a while, but having checked it needs to be in 12th August so have a little more time to sort it than i thought.

[foolishgirl]

but having checked it needs to be in 12th August so have a little more time to sort it than i thought.

 

Oh, oodles!! I'll help where I can..

[myboro]

Ok so looking at the following draft defence. Any thoughts/comments appreciated.

 

Swindon County Court Claim Ref:

Between

Nationwide

and

Mr XXXXXXXX - Defendant

Defence

1.I XXXXXX am the defendant in this action and make the following statement as my defence to the claim made by Nationwide.

 

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

 

3.The claimants’ particulars of claim discloses 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 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 and scope of the alleged breach, the method the claimant calculated any outstanding sums due 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 the Notice served under Section 87(1) of the consumer credit act cited in the Particulars of Claim, has not been served attached to the claim.

 

d)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 do not know what case I have to meet.

 

5.Further to the case, on 15th July 2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account. A copy of this letter is attached.

 

a)The claimant responded on 23rd July with a copy of an application form purported to be the agreement under which this claim has been brought. The claimant in the response confirmed that no further action will take place while further information was compiled. A copy of this letter is attached.

 

b)No further response has been received from the claimant to date. As a result it has proven difficult to compose this defence without disclosure of the information requested

 

6.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.

 

7.Notwithstanding point 6, 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)

 

8.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 an 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)

 

9.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses 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

 

10.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.

11.Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. 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,xxxxxxxxxxxxx, believe the above statement to be true and factual

Signed ………………… Date xxxxxxx /2008

[myboro]

OK having had a look around found a successful case against nationwide very similar so have updated my defence.

 

Nationwide/kpr Cca Request- now a Court Claim **WON** Notice of discontinuance

 

Have added draft as attachment and would appreciate comments please.

With the looming postal strike going to send this today I think.

 

Many thanks to DG and FG for the help to date

Defence2.pdf

[foolishgirl]

Sorry, myboro, haven't got time to look at your defence in detail until this evening but would quickly make the following points:

 

1. They have provided you with your CCA - this may have come under the CPR instead of S78 request but doesn't matter, you have it so no need to make play of it in your defence.

 

2. However although they state they have served a DN (& you have it;)), they have not provided a copy under the CPR, nor have they provided prove of the date that it was sent & this is what you should be stressing.

 

3. They have not assigned the debt - they are the claimants - therefore NOA is not applicable.

 

4. They have shown no proof of how the sum claimed was calculated & you have reason to believed that this may include unlawful charges i.e. where are the statements

 

5. You should insert a clause asking that a copy of a signed CCA be produced to the court within 14 days or go for immediate strike out on the grounds of non-enforceable CCA (S127)

 

6. Your defence may be a little to detailed with the references & quotes to the various judgments re. the DN. They have not produced a copy yet - save this argument for your WS if it gets that far.

 

7. If they cannot produce a CCA containing the prescribed terms, the court is not empowered to order enforcement & MUST strike out the claim & I think this is the major point you need to get across. If they cannot get past this hurdle (& it certainly looks at the moment as though they can't), the rest of the argument is superfluous.

Edited August 6, 2009 by foolishgirl
typo

[myboro]

Thanks for the heads up. You are correct no need to argue the DN yet as they did not supply one so have pulled that.

 

New defence attached - I'm sure it could go further but I think it should at least make them think about whether the CCA is valid.

 

Hope it works. Thanks for all your help.

 

New defence removed as it had personal details in. It should get the job done though

Edited August 6, 2009 by myboro

[myboro]

OK. Final draft I hope. Tried to keep it reasonably short with only key issues/ case references if relevant.

 

If anyone has any comments they would be most welcome

Defence4.pdf

[foolishgirl]

Sorry, another quick look, it's manic today. Excellent, just comments to tidy up FWIW:

 

1. You don't need para 1 - it's a defence, not a WS, therefore you don't refer to yourself in first person

 

2. Para 2 - strike out 'as very vague'

 

3. I like para 6 . Well done

 

4. You don't need to include copies of anything at this stage except maybe the agreement & should just put in para 10 'attached copy for the court's convenience'

 

5. para 21 - 'could not', no abbreviations

 

6. delete para 24 to 26 & put in:

 

If the claimant is in disagreement, then it is respectfully requested that the claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553. Should the claimant be unable to produce the original agreement or a copy of, 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 supplied by the claimant unenforceable.

 

(It's the same as what you're saying but altered around in the text)

 

7. para 28 - delete. You can bring in para 28 if necessary at WS stage

 

8. Put in at the end (number correctly)

 

i) The Claimant’s entitlement to payment of the sum of £xxx is denied.

ii) In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to CPR 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.

Now catch the post...

[myboro]

Just a quick update. Made changes as suggested and sent defence in. Phoned court today and confirmed it was received. Fingers crossed.

 

BTW many thanks FG, your help has been invaluable and this site as a whole is brilliant. Have learnt so much in such a short time.

 

Now we wait and see.

Edited October 9, 2009 by myboro
change odd characters

[myboro]

Well time for an update - case moving slowly.

 

Eventually Got Nationwide's response for info - same application form, missing statements and details of only 1 default notice. Still not allowed 14 days and required to pay full balance.

 

So after allocation case stayed till yesterday - waiting to see what happens next.

 

Have uploaded Nationwide's AQ, my response and a revised defence. Any comments really appreciated and many thanks so far

Nationwide.pdf

20090930 Allocation Response blanked.pdf

20091005 Revised Defence Blanked.pdf

[myboro]

Ok so I have received notice that eversheds are acting for Nationwide and they asked for a trail date in January!! Great a good christmas.

 

Anybody know if I can submit my own directions asking for the case to be thrown out. The have an invalid CCA and defective default notice. Not allowed 14 days, pay full amount and not in prescribed form.

 

Many Thanks

[42man]

I think you could have issued directions at AQ stage.....

[myboro]

Yes I missed that but it was only when they sent in their AQ I noticed they asked for my defence to be thrown out with directions it dawned on me.

[steven4064]

You can issue a counterclaim at any point

[ukaviator]

For the counterclaim use form N9b available here:

 

http://www.hmcourts-service.gov.uk/news/forms/docs/n9b_0406.pdf