Shoomsmiths issued Claim form Help!

[bazaar]

It may not be their practice to provide documents, but under SAR they must produce them, so keep a close eye on your timing, not theres. As soon as they are in default letter before action, just to give em a little more time and show how reasonable youve been of course;)

[hazyeyes]

Hey

 

I sent of the letter yesterday via recorded, I wrote on the back of the letter they sent me basically what you guys advised..

 

Oh and I made a photocopy of the letter before I sent it back to them

 

I also received a letter this morning, basically telling me how much in arrears I am with the loan and if I pay £600+ I can clear it and start up the payments again!

 

They seriously make me laugh the lengths they go to to try to make me admit the debt it even says in the letter we are aware you have been in contact with us regarding paying the debt, not sure where they have that information from because I sure as heck haven't!

 

Lucy

[hazyeyes]

Update, I recieved two letters this morning, one from RBS and one from Shoosmiths.. Forgive me because I cannot scan them so will have to type them..

 

RBS:

Basically says this

RE:Request for CCA

 

We return your letter, as attached (they have attached my request for the CCA a photocopy may I add), which we are unable to action at present.

 

Please sign and return in order for us to comply with your request

 

Thank you for you assistance blah blah blah

 

RBS

Yet again they are asking for my signature and yet again they can go jump as they are not getting it

 

Shoosmith letter:

We write with reference to the above (claim number) and understand that you have made a request under CPR 31.4 for the disclosure of all documents referred to in the particulars of claim

 

Please be advised that this has been referred to our client who shall endeavour to furnish you with the applicable documents. In the interim, however, please be advised that we shall hold legal further proceedings until the documents have been recieved, following which you will be provided 14 days to draft and file a defence, if so advised

This bit confuses me what does that exactly mean I have until 3rd of October to file my defense, this makes it sound like I will have further time to do this, can anyone explain to me what they are talking about?

 

Please be advised that we also have recieved your request made pursuant to section 77/78 of the CCA act and furthermore the SAR request. These have been referred to our client and will be processed in due course

 

We trust this clarifies the position and look forward to hearing from you in due course....

 

-----------

 

All advice is very much appreciated

 

L

Edited September 15, 2009 by hazyeyes

[bazaar]

Well once Nat are in default of your legal request you can apply to have them produce the documents.

Shhosmiths seem to be a little presumptive in the 14 days. This is up to the court, so dont worry about the shenannigans, its all part of the game. Theyll try and push you to the edge.

Whats the time limit for Natwest to default by the way?

[hazyeyes]

I got confused then cause you put Natwest, forgot that RBS and Natwest are one of the same...

 

The Claim Form was issued on the 2nd September, I sent in the SAR, CCA about 3 days before the claim was received and CRP was sent on the 6th September, I have letters to state that all requests have been received (unfortunately I didn't send the CCA and SAR by recorded)

 

First letter to confirm they have received them is on the 8th September, as I understand they have 14 days to comply with the CCA which gives them until the 22nd (because I cannot prove when I sent it in my fault could actually kick myself for this) and 40 days for the SAR which takes me over my defense deadline (should I be worried?)

 

I am unaware how long they have to comply with the CRP request, I take it thats 40 days also..

 

Because they are asking yet again for a signature do I need to send out another letter stating that there is no requirement by law for them to ask this, I sent one of these on the 11th sep by recorded so surely I don't need to do this again?

 

Thanks so much bazzaar for your reply much appreciated

 

L

[r&b]

I got confused then cause you put Natwest, forgot that RBS and Natwest are one of the same...

 

The Claim Form was issued on the 2nd September, I sent in the SAR, CCA about 3 days before the claim was received and CRP was sent on the 6th September, I have letters to state that all requests have been received (unfortunately I didn't send the CCA and SAR by recorded)

 

no matter they have acknowledged receipt of them.

 

First letter to confirm they have received them is on the 8th September, as I understand they have 14 days to comply with the CCA which gives them until the 22nd (because I cannot prove when I sent it in my fault could actually kick myself for this) and 40 days for the SAR which takes me over my defense deadline (should I be worried?)

 

I am unaware how long they have to comply with the CRP request, I take it thats 40 days also..

how many days did u give them in which to reply?

Because they are asking yet again for a signature do I need to send out another letter stating that there is no requirement by law for them to ask this, I sent one of these on the 11th sep by recorded so surely I don't need to do this again?

 

well u can simply send a letter saying you believe they are now being obstructive to the Overriding Objective of the CPR as outlined in CPR part 1, by denying you access to documentation vital to this case and should you not be satisfied in your request within the given timeframes, you will highlight such to the court at the appropriate time.

 

Thanks so much bazzaar for your reply much appreciated

 

L

 

r&b

[bazaar]

CPR request can be as little as 7 days. Its what you specify. If its in court soon, then they are being obstructive as R & B states, so you can inform them that their behaviour WILL be reported to the court and you demand that documentation is sent, otherwise you will apply to court for an order for them to do so.

Dont even try to be nice with them, just make sure you stick to the law.

[hazyeyes]

I specified 14 days for the CPR, sorry my minds a little clouded today feeling exhausted (kids lol)

 

Like I said I have until the 3rd oct (last date so would like to get it in a couple of days before to be safe) to submit my defense so they have time for the CPR request and the CCA request...

 

Although they will both be in default on the 22nd Sep as thats 14 days

 

L

[bazaar]

OK good, you can sort of get to work on your defence, draft it up as if they actually responded to your requests, lets see what your argument will be. If they dont, then its a simple order for documents.

[hazyeyes]

OK good, you can sort of get to work on your defence, draft it up as if they actually responded to your requests, lets see what your argument will be. If they dont, then its a simple order for documents.

 

I really have no idea where to start with a defence at all, any good threads you can point me too with this as I am completely clueless and in over my head..

 

Sorry I sound stupid don't I

 

L

[bazaar]

Dont worry, weve all been in your shoes. Try this link :

http://www.consumeractiongroup.co.uk/forum/legal-issues/194802-embarrassed-defence-procedure.html

 

Post 9 has basically what you'll need, there are loads of others on the site. So draft up yours minus personal stuff, then it can be amended.

[hazyeyes]

Sorry for my late response my oldest daughter has been off school sick..

 

The time is almost here, they are now in default of the CCA request, and almost in default of the CPR and SAR request..

 

bazaar

 

I read through that thread specificly post 9, do I need to send the first one to shoosmiths and the second one to the court and shoosmiths?

 

I would like to submit my defense online as its much easier for me (not having a printer)

 

Just to clarify I have NO documents at all, nothing squat from RBS..

 

Cheers

 

Lucy

[bazaar]

hi, Spam alot has just posted a defence so kudos to them for this. Amend it to suit. You serve the defence online then itll get allocated to your local court if they want to continue.

*

 

 

 

 

 

 

 

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 XX.XX.XX 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 X 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 XX.XX.XX. 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 HFC 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.
   

[hazyeyes]

Thats brilliant, cannot thank you and spam alot enough, I will go through it tomorrow and post it when I am done, if you think its cool I will submit my defense.

 

I should maybe wait another few days before I do so though last possible date is 5th October which is a week Monday, I would like to get it in though around the 1st just to be on the safe side...

 

[hazyeyes]

bazaar

 

Just to clarify is a Deed of Assignment a letter basically saying they have taken over the debt?

 

Also I have found in all my paperwork a formal notice to file default on the accounts, all the amounts are different from what they are now claiming that I owe!

[bazaar]

the deed is to show they now own the debt, they usually buy this.

 

As regards the amounts differing, theyve probably added charges etc to the amounts, so its important you go through the statements of account with a fine tooth comb.

[hazyeyes]

Ok here goes, as I really have no clue if I have done this correctly any advice would be great

 

I looked through the defense you posted and couldn't actually see all that much that wasn't appropriate to my case, if there is anything that I have done wrong pls tell me as I wasn't sure about Number 14 should that remain cpr 3.4 or do I need to change that to CPR31.14

 

I have taken out my dates..

 

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

 

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. On the ******* the defendant sumitted a request for a Subject Access Request and Consumer Credit Agreement. 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).

 

5. On ********** the Defendant also submitted a request under CPR31.14 for a copy of the agreement that the Claimant is relying upon in pursuit of this claim, giving the Claimant 7 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

 

6. 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.

 

7. 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."

 

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

 

9. 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’

 

10. 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.

 

11. 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)

 

12. A request was made for copies of default notice(s) under CPR 31.14 on the 5th September 2009. To date the Claimants have not supplied this documentation.

 

Conclusion

 

13. 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.

 

14. 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.

 

15. 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.

 

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.

--------

 

Also should I add in my defense that they are playing games with this whole signature thing, sending out countless letters saying they cannot deal with it until they have it?

[hazyeyes]

the deed is to show they now own the debt, they usually buy this.

 

As regards the amounts differing, theyve probably added charges etc to the amounts, so its important you go through the statements of account with a fine tooth comb.

 

I have a letter from shoosmiths and Triton to say they would be dealing with it so I take it this is all in order...

 

As of yet I have no statements on any of the accounts, they are in default of the CCA and CPR requests as I only gave them 7 days for the CPR not 14 like I originally thought..

[bazaar]

Then at the bottom of your defence add point ©, full list of statements as you believe there may be illegal charges added to sum being claimed

[hazyeyes]

Ah yes I thought I had forgot something, thats one thing I cannot forget esp when I have found a couple of old statements from after I cancelled all my DD and SO's and it was just below £600, they are claiming over £1200 on the claim form!

 

Thanks bazaar I will submit it this week, may just give them a couple more days to send me something, no holding my breath though!

[hazyeyes]

I have a problem I have come to submit my defense online and I am limited to 8000 characters, its over that not sure how much I am just working that one out, what do I do?

 

EDIT its 10504 I am also limited to 122 lines which is mad!

 

Will work out what I can actually take out that isn't so important...

[hazyeyes]

I have taken a few things out, i.e cases which I was drawing the courts attention to, do you think this will be OK now, I really don't want to submit until someone has looked over it.. Wanna do this right..

 

 

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. On the **** the defendant sumitted a request for a Subject Access Request and Consumer Credit Agreement. 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).

 

5. On the Defendant also submitted a request under CPR31.14 for a copy of the agreement that the Claimant is relying upon in pursuit of this claim, giving the Claimant 7 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

 

6. 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.

 

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

 

8. 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.

 

9. 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)

 

10. A request was made for copies of default notice(s) under CPR 31.14 on the 5th September 2009. To date the Claimants have not supplied this documentation.

 

Conclusion

 

11. 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.

 

12. 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.

 

13. 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.

© full list of statements as I believe there may be illegal charges added to sum being claimed

 

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.

Edited September 30, 2009 by hazyeyes

[hazyeyes]

I give up, I have well over 122 lines, I may just write it up and send it via the good old royal mail tomorrow..

[hazyeyes]

Ok I wrote it up today and posted it out via signed for, will let you all know what happens when I hear anything

 

Still nothing from RBS...

[hazyeyes]

Recieved a letter from the court this morning stating that my defence will be forwarded to the claimant and they have 28 days to do what I have asked if they don't it will be stayed

 

Yet another waiting game...

 

Will keep you all updated, hoping they cannot supply the documents but knowing my luck they will although saying that they have had plenty of time to do so already and I have received nothing at!