Major Help needed with Cabot and CCJ**WON** Case dismissed

[gazhodge1981]

I have been looking around for an example of a counter claim but not come u with any as yet.

I have seen under the CPR that :-

20.4 (1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2) A defendant may make a counterclaim against a claimant --

(a) without the court's permission if he files it with his defence; or

(b) at any other time with the court's permission.

 

I will keep looking and see what i can find.

[Spamalot]

Hi Gaz,

 

The only 'Counterclaim' I've seen so far is with regards to getting the 'alleged agreements' judged as unenforceable... so that Cabot can't sell the debt on or put in another claim on the same documents... but I'm still looking for other examples as I will have mine to do as well now.

 

Spam.

[gazhodge1981]

hi Spam,

 

have you had any luck with your search? So far I seem to be a bit stuck with regards to the counterclaim as there doesnt seem to be much about. I didnt know that cabot could sell the debt on or put another claim in

Will see what I can find today, maybe even give a solicitor a ring see if i can get hold of one.

[r&b]

not sure if its any use and im tied up with my own stuff so i havent got time to check...but i seem to remember IGNM putting some CC with defences so might be worth a search under his mnemonic to see whats what. andyorch may also have dun similar..

[gazhodge1981]

I am feeling a bit like a lost sheep now

I have spoken to a solicitor who said he didn't see any reason for me to counter claim He said that they could sell the debt on if they wanted to or put another claim in if they wanted

[Spamalot]

Hi Gaz,

 

Sorry been a bit waylaid this weekend...

 

At present I would suggest you just tag this on to your defence...( without the underlining, and give it a consecutive number to the last one on your defence.) It's from one of IGNM's

 

Counterclaim

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreements are unenforceable in that they do not contain the statutory particulars and they are not properly executed.

 

 

 

This is the only one I could find...

 

If it isn't judged unenforceable then there is the possibility that Cabot could try again so it's worth putting it in as a counterclaim.

 

Spam.

[gazhodge1981]

Thanks Spam,

 

I have been looking at IGNM's threads myself

Will add the above to the defence and will put the defence on here for everyone to see before I file it and send it to them.

 

Counterclaim

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreements are unenforceable in that they do not contain the statutory particulars and they are not properly executed.

 

Do I keep the Counter claim bit on aswell ??

[gazhodge1981]

COUNTY COURT CLAIM NO:

On Transfer from the

NORTHAMPTON COUNTY COURT

 

 

BETWEEN

 

Cabot Financial

 

CLAIMANT

 

And

 

 

 

 

 

DEFENDANT

 

 

 

1. I am the Defendant in this action & I am a Litigant in Person.

 

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

 

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

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method by which the Claimant calculated any outstanding sums due, the details of 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.

 

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.

 

4. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

5. The Defendant has not received Notices of Assignment from either MBNA or Argos. The defendant therefore puts the Claimant to strict proof of their legal entitlement for their claim by requesting that the original Deed of Assignment is presented to the Court for inspection as it is otherwise impossible to establish the Claimant’s entitlement to legally pursue this claim.

 

6. On 20.08.2009 the Defendant submitted a request under CPR18 for a copy of the agreement that the Claimant is relying upon in pursuit of this claim, giving the Claimant 14 days in which to respond. To date the Claimant has not responded & the courts attention is drawn to the fact that without disclosure of the requested documentation the Defendant has not had the opportunity to assess if the documentation which the Claimant seems to be relying upon to bring this action actually contains the prescribed terms as required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

 

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

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

 

7. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in (7) above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore it is not enforceable by s127(3) of the same Act.

 

So there should be no misunderstanding, it is noted that the agreement referred to by the Claimant would have commenced prior to the inception of the Consumer Credit Act 2006. It is therefore regulated by the Consumer Credit Act 1974 s127 as Schedule 3, S11 of the Consumer Credit Act 2006 prevents S15 repealing this clause.

 

8. The court’s attention is also drawn to the authority of the House of Lords in Wilson-v- First County Trust [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 by the court.

 

"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’

 

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 - the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

 

"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."

 

9. The Claimant is therefore put to strict proof that a compliant document exists.

 

10. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendants have had benefit of the monies and therefore the Defendants are liable, reference is made to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

’26. In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid’

 

11. The Defendant neither admits nor denies receipt of a default notice(s) & puts the Claimant to strict proof of delivery of such. Section 87 (1) of CCA1974 states:

"Service of a notice on the debtor or hirer in accordance with section 88 (a ´default notice') is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

(a) to terminate the agreement,

If the Claimant cannot provide material evidence that a default notice(s) was sent to the Defendant, this account has been unlawfully terminated.

 

12. The Claimant is also put to strict proof that any Default Notice sent to the Defendant was valid. 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).

 

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

 

13. A request was made for copies of default notice(s) under CPR 18 on 20.08.2009. To date the Claimants have not supplied this documentation.

 

14. The claimant seeks to claim interest ‘at the rate pursuant to Section 69 of the County Courts acts 1984;. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

Conclusion

 

15. Notwithstanding the fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default has been served upon the Defendant and therefore the Claimant is precluded from taking such action.

 

16. In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimant’s 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.

 

17. If the court considers such action inappropriate, it is requested that the court order the Claimant to produce the following documents at a hearing:

 

(a) an original credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983.

(b) a copy of any default notice sent by the Claimant in respect of this account & the proof of mailing of such.

© the original Deed of Assignment showing the date, amount & parties named in the assignment of account from Mbna and Argos to the Claimant.

 

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

Counterclaim

 

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreements are unenforceable in that they do not contain the statutory particulars and they are not properly executed.

Statement of Truth

 

 

I **********, believe the above statement to be true and factual to the best of my knowledge

 

How does this look?

[Spamalot]

Do I keep the Counter claim bit on aswell ??

 

Yes... it's just like a continuation of your defence which is why you need to continue with the next consecutive number

 

Spam.

 

You need to take the 9 out and put 18 for your counterclaim..

[Spamalot]

Looks good to me..

[gazhodge1981]

oops spot the mistake. it should be 17 not 9

 

thanks spam, feel a bit better now, more of a Black sheep now not so lost

[Spamalot]

 

You're doing good Gaz. You can get the defence into the court as soon as ,but as I said before leave it as long as poss with Cabot so they only just get it on time....

 

Spam.

[gazhodge1981]

I have my Day planned tomorrow

 

will go to the court in the morning and put the defence in and then will post it to there solicitors special delivery in the morning

Thanks again for all your Help Spam,

[Spamalot]

No probs... good luck,and keep us posted with any updates.

 

Spam.

[gazhodge1981]

Will do, what sort of time scale does the process normally take??

[r&b]

would that benefit from the mention of s.142 CCA1974?

[Spamalot]

Will do, what sort of time scale does the process normally take??

 

I believe the next step should be that you will receive an AQ (Allocation Questionnaire) from the court, perhaps in the next week or so... a lot of it depends on how busy your court is.

 

Spam.

[gazhodge1981]

would that benefit from the mention of s.142 CCA1974?

 

which bit do you mean R&b ?

[Spamalot]

This is s.142..

 

142 Power to declare rights of parties

(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection,

the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

(2) Where—

(a) a regulated agreement or linked transaction is cancelled under section 69(1), or becomes subject to section 69(2), or

(b) a regulated agreement is terminated under section 91, and an interested party applies to the court for a declaration under this subsection, the court may make a declaration to that effect.

Is this what you mean R&B?

[r&b]

declaration of unenforceability under s.142

[gazhodge1981]

if that was added to the defence, where would it go and does that apply to this defence?

[r&b]

for the CC i mean, ur asking for it to be made unenforceable...in the CCA1974 thats the section to allow the court to do it i believe.

[Spamalot]

Counterclaim

 

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreements are unenforceable in that they do not contain the statutory particulars and they are not properly executed. As per s.142 Consumer Credit Act 1974.

 

I think thats what r&b means... as I said I'm unsure of counterclaims as I've not done mine yet...

 

Spam.

[r&b]

why didnt i just do that in the first place spam....tryin to be quick n end up ..........

sorry for any confusion but thats exactly wot i meant........

[gazhodge1981]

I was confused but it doesnt take much

Thanks r&b ans spam, Will change it now