SAINSBURYS credit card claimform- Help needed

[roygoodbeat]

I have a credit card with Sainsburys which I took out in 2004. I've gone through the following procedures and now need some urgent advice:

 

1) Subject Access Request- Sainsburys deny ever receiving my request. I wrote to the Information Commissioner and provided proof of postage. They wrote back and stated that it seems likely that they have broken this principle.

 

2) CCA Request- Made the request with the usual £1. Sainsburys went into default on the 1st July as no agreement was sent. They wrote on the 3rd July (received the 6th July) with a reconstructed agreement, no signiture dated Oct 08. (Agreement taken in 2004) Wrote to them stating that only a copy or the original would be accepted. Wrote back with a copy of my original application which does not confirm to the regs.

 

To date, no copy of the original signed cca agreement, only demands for payment. I have written a number of occasions stating that I do not feel that my request is unreasonable for a copy of the orginal signed agreement.

 

Now their solicitors are now threatening court action.

 

Any advice? My next letter was going to be along the lines of. "As they have breached a number of my lawful requests and failed to produce a valid signed cca agreement, I will waiver any compensation claims against them in favour of reducing the balance to 0.

[applecart]

Hi Ya

 

You have done all that can be expected of you at this stage.

 

They have failed to produce a valid CCA. The matter is effectively in dispute.

 

I can tell from your post that you just want to be done with the whole thing and I suppose that's why you suggest writing to them to plea bargain....

 

But the fact of the matter is that the law is quite straightforward and it can work to protect you - if they do not hold a valid cca then they have no true claim against you.

 

I would sit tight and wait for them to take the matter to court.

 

The application they sent you is not an agreement.

 

If you do want to write to them - then try using one of the tried and tested letters that can be found on the forum.

 

Whatever you do - do not make them any offer in any shape or form.

 

Apple : )

[roygoodbeat]

They wrote and said that their reconstructed agreement of oct 08 is the valid agreement and they are allowed to do this. That's not true?

[applecart]

Hi ya

 

I am not aware of any law that allows any trader to 're-construct' any credit agreement. This would be tantamount to fraud!!!

 

If I did reply to them - I would only write to advise them that I am referring the matter to their regulatory body - the OFT - purely for clarification of their actions taken so far of course. : )

 

If there is no signature, how on earth can they prove in a court of law that you have a true agreement..??

 

Yes..you were paying it off - but the trader needs to appreciate that now that you are aware that they have no documents to sustain the agreement; that it could get pretty nasty for them in a court of law....

 

It would be interesting to know what steps they took to bring the matter into default - i.e.... is the default notice valid??

 

Apple

[roygoodbeat]

A court summonds arrived today.Any ideas on my defence?

[applecart]

Hi Ya

 

If as you say, there is no signed agreement - then this is your defence.

 

A solicitor is your next step. : )

 

Apple

[roygoodbeat]

Most solicitors have been closed for xmas. I am extremly worriedasI have no money to pay for costs.

 

I did write to Sainburys with a Pre Court Proticols request on the 18th December. I gave them 10 days to produce the required documents sothat I could submit my defence. To date, I have not received anything. I have until the 12th Jan to submit a defence.

 

Any help would be welcome.

[Out4Revenge]

Bump:)

[roygoodbeat]

I have to submit a defense to the courts by Tuesday. I still have not received anything from Sainsburys. Could someone check these documents. Account was taken out in 2004. These are the only ones I have had.

 

1) There is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/uu351/roygoodbeat/agreement.jpg

 

2) They have supplied a reconstructed credit agreement, not a copy of the original.

Page 1:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted1.jpg

Page 2:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted2.jpg

Page 3:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted3.jpg

Page 4:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted4.jpg

Page 5:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted5.jpg

Page 6:

http://i663.photobucket.com/albums/uu351/roygoodbeat/reconstrcted6.jpg

 

Can anyone suggest how to write a defense??

 

Keypoints.

 

1) Made a subject access request on the 27th April. Sainsburys failed to respond within the time frame. They claimed they did not receive it. The Information Commissioner ruled that on the balance of probililities, in was likely that they broke this principle. (I have the letter)

 

2) Made a consumer crefit agreement request on the 8th June. Copy of agreement didnot arrive until 23rd August.Reconstructed agreement was sent on 27th June, arrived 3rd July.(Two days out)

 

3) Have written about account in dispute. Debt collection agents continued to chase. Had advised that I considered account in dispute until full copy of agreement was in place. Sent them the bemused letter.

 

4) Requested information under the Civil Procedure Rules on 25th July. Ignored by Sainsburys. Gave them 14 days

 

5) Wrote to Albion Collections on 11th Sep as they were ignoring my in dispute. Reminded them of OFT guidelines and that I was still awaiting consumer agreement. Asked them under section 10 of data protection act to cease processing data.

 

6) Started receiving letters from Blair, Oliver and Scott. (Did not receive notification that they were changing agents. Wrote on the 1st Nov with bemused letter.Asked them under section 10 of Data Protection act to cease processingmy data.

 

7) Wrote to Bank Ombudsman,who replied with usual, sorry cannot help,go to ombudsman.

 

Have quoted all the relevant actsthat I beleived that they have been breaching.

 

8) Received court claim. Wrote to them on 18th Dec using Civil Procedure Rules again requested information and copies of original agreement. Gave them until 29th December on letter. Nothing returned by them. Cannot fully complete defence as info not given. (Sent by recorded delivery)

 

Its a bit short notice but due to xmas period could not get a solicitor, have no money and Sainsburys did not send me the requested info.

[the main man]

What were the Particulars of Claim on the claim form?

[roygoodbeat]

Quote:

 

"The Claimants claim is for (between 5-6) presently due pursuant to a credit agreement entered into by the parties, full particulars of the claim have been supplied hitherto.

By an agreement dated 30/10/2003 the defendant has an account number (blah blah) with the claimant. The Defendant has failed or delayed to adhere tothe terms of the default notice issued by the claimant under the terms of the consumer credit act 1974. The balance as at (blah blah) on said account is (Between 5-6)"

 

Have left out exact figure as you never know who reads these!

[B3rty]

If this is Northampton then a holding defence will do as all they will do is pass it onto your local court by that time you should have ample opportunity to digest Carey V HSBC and get it thrown out at A.Q stage

 

Things to check are the application, does this refer to prescribed terms overleaf or anywhere else if not then stop worrying and just wait for the AQ because s.127(3) is your defence ...also the reconstituted agreement needs to contain your name and addresses after Carey v HSBC so this is incorrect as well.

 

As I said if this is Northampton I wouldn't be in too much of a hurry to alert them that the docs are wrong at this stage.

 

Have a look at the defence I used a few years ago in post 79 prepared by PT....it still stands good although you will need to edit the relevant bits.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/118878-help-court-ccj-letter-4.html

Edited January 9, 2010 by B3rty

[roygoodbeat]

The copy I have is just about legible. The document I have refers to conditions of use set out overleaf, but I have never received these, only are reconstitued version. It is a copy of these terms and conditions and the document in full I have been requesting but they have failed to send.

 

Apart from the court papers, no other documents have been sent and Sainsburys have not repliedtomy precourt proticols. Do I mention at this stage my data access request sent outside the 40 days by Sainburys. The Information Commissioner ruled that on the balance of probililities, in was likely that they broke this principle?

 

The reconstructed version does contain my name and address. They cannot use this as evidence as the account was taken out in 2004 and they will have to use the original in court. Is that correct?

Edited January 9, 2010 by roygoodbeat
correction

[MandM]

subbing

[roygoodbeat]

I have prepared a draft defense. Can anyone check it or give advice?

 

 

THE NORTHAMPTON COUNTY COURT Claim: 7XXXXXX

BETWEEN:

Sainsburys Bank - CLAIMANT

-and-

Me - DEFENDANT

DEFENCE

1. I (me) am the defendant in this action and make the following statement as my defence to

the claim made by Sainsburys Bank.

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation

made in the claimants 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: -

4. 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

particularized 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 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 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.

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

proof thereof.

The Request for Disclosure under the Civil Procedure Rules

6. Further to the case, on 18th December 2009 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.

7. To Date the claimant has ignored my request under the CPR and I have not received any

such documentation requested. As a result it has proven difficult to compose this defence

without disclosure of the information requested, especially given that I am Litigant in Person (

a copy of the request is attached to this Defence marked 01)

The importance of a copy of the credit agreement and its production before the court

8. 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

9. 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)

10. 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

11. 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

12. 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."

13. 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

14. Notwithstanding point 14, 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

15. Therefore the claimant must provide a copy of the agreement compliant with the

regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

The courts power of enforcement

16. 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).

17. 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

18. With regards to the Authority cited in point 17, 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.

29. 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.

30. 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.

19. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit

agreement the claimant's case cannot succeed

20. Therefore I respectfully request 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

21. Further more the defendant requires clarification on the status of the original agreement,

the defendant requires the claimant provide a certified copy of the original agreement. If the

document is no longer in existence the defendant requires certification of destruction and

furthermore the defendant will call into question the validity of any purported copy of the said

contract where the original has been destroyed. The defendant will require production of

details as to when any copy was made and what medium the copy has been stored on along

with clarification of who has had access to the document and also require written clarification

that any copy document produced is authentic. The defendant notes that the Civil procedure

rules also require the original documents to be made available under practice direction 32

22. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005]

on appeal from Stafford County Court the issue of the loss original or destruction of the credit

agreement was central to the case and the defendant is under the belief that the outcome of

the case was that where the original agreement could not be produced the claim could not

succeed and that the appeal was successful.

23. 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.

SUBJECT ACCESS REQUEST made under the Data Protection Act 1998

24. On the 27th April 2009, I made a Subject Access request under the Data Protection Act

1998(DPA). I again sent a copy of this letter, along with a reminder on the 13th May, of which I

retained proof of postage. The Claimant failed to comply within the required 40 day period,

therefore broke the Sixth Data Protection Principle (that data is processed in line with the

rights of the individual) I requested details of all transactions, a schedule of all charges &

interest applied the alleged account, a copy of the original contract by which this account

is/was governed including all amendments made to the contract terms since opening the

account. A copy of the contract requested under this act was not sent.

I refer to the following exert of section 7- Right of access to personal data of the Data

Protection Act 1998

(7) An individual making a request under this section may, in such cases as may be

prescribed, specify that his request is limited to personal data of any prescribed description.

(8) Subject to subsection (4), a data controller shall comply with a request under this section

promptly and in any event before the end of the prescribed period beginning with the relevant

day.

(9) If a court is satisfied on the application of any person who has made a request under the

foregoing provisions of this section that the data controller in question has failed to comply

with the request in contravention of those provisions, the court may order him to comply with

the request.

(10) In this section—

• “prescribed” means prescribed by the Secretary of State by regulations;

• “the prescribed maximum” means such amount as may be prescribed;

• “the prescribed period” means forty days or such other period as may be prescribed;

• “the relevant day”, in relation to a request under this section, means the day on which

the data controller receives the request or, if later, the first day on which the data

controller has both the required fee and the information referred to in subsection (3).

25. I also refer to the response to my Complaint from the Information Commissioners Office

an exert of their letter dated 22nd October.

“As you have provided proof of postage it is now my view that it is likely Sainsburys Bank

failed to comply with the sixth data protection principle (that personal data is processed in line

with the rights of the individual) in this case. This is because it now seems reasonable to

assume Sainsburys Bank would have received your subject Access Request and therefore

would have failed to comply with it within the required 40 day period.

Therefore it is now my view that it is unlikely Sainsburys Bank complied with the DPA in this

case”

Request made under the Consumer Credit Act 1974 under section 78(1) to Sainsburys

Bank

26. I would respectfully submit the debt is unenforceable under the Consumer Credit Act 1974

until such time as the claimant provides the necessary information

27.The request for the alleged credit agreement was made under section 78(1) running

account credit, of the Consumer Credit Act 1974 on the 10th June 2009. The prescribed time

limit for furnishing a copy of the alleged credit agreement containing the full relevant under this

act is twelve working days from receipt of the request, as stipulated in Regulation two of The

Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

28.The claimants were legally obliged to furnish a copy of the alleged credit agreement by the

1st July 2009/

29. Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, the Claimants may

be committing a offence as of the 01st August 2009, as the default will have continued for a

period of one month. The Claimants will have continued to commit an offence if they have not

produced a credit agreement. The claimants have issued a Court claim without having any

proof that a credit agreement exists. I would therefore contend that the Claimant’s conduct

amounts to unlawful harassment.

The Need for a Default notice

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1)

Consumer Credit Act 1974 serve a default notice before they can demand payment under a

regulated credit agreement

31. 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

32. Notwithstanding point 28, 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)

33. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996]

4 All ER 119

Unfair Terms in Consumer Contracts Regulations (1999)

34. The defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate

of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of

any breaches of contract on the part of the defendant; and are not intended to represent or

related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the

contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is unenforceable

by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

35. Accordingly I put the Claimant to strict proof that every charge and collection charge made

to the account was valid and lawful. I aver that any default notice sent would have included

these charges.

Conclusion

35. 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.

36. If the court considers it inappropriate 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

37. As laid out in point 24 the defendant requires that the claimant provide the requested

information and proofs and authenticities. The defendant requests that the court order that the

claimant supply the information requested

38. 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.

39. I respectfully ask the permission of the court to amend this defence when the claimant

provides full disclosure of the requested documents

Statement of Truth

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

Signed: ......................... ....................

Date: ……………………………………………

defenseprecourt.pdf

Edited January 10, 2010 by roygoodbeat
amendment

[MandM]

Hi Roy,

 

A bit too much at this stage, you only need a holding defence as said above.

 

Have a look here>>>> http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

M

[roygoodbeat]

Something like this???

 

In the Northampton County Court

Claim number XXXXXXXX

Between

XXXXXXXXX - Claimant

and

XXXXXXXX - Defendant

Defence

1. I XXXXXXXX of XXXXXXXX am the defendant in this action and make the

following statement as my defence to the claim made by Sainsburys Bank

2. Except where explicitly stated below the Defendant neither admits nor denies any

of the assertions or claims made by the Claimant.

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at

present, inter alia:-

4. 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 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 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.

d) A copy of any termination notice served under section 76 and/or section 98 of the

CCA, on the alleged account, has not been served attached to the claim form.

e) A copy of any notice of assignment compliant with the provisions of the Law of

Property Act 1925, on the alleged account and proof of original service of said

assignment to the defendant, has not been served attached to the claim form.

f) The defendant requested information referred in the claim under CPR 18 & CPR

31.14 from the claimant by Royal Mail Special Delivery. The request was received by

the claimant on the 18th December 2009, compliance with the requests has now

expired. The defendant wishes to make the court aware that the claimant is trying to

frustrate proceedings and denying the defendant an opportunity to file a defence and

counter claim.

5. Consequently, I deny all allegations on the particulars of claim and put the claimant

to strict proof thereof.

6. I respectfully request the courts permission to submit an amended defence should

the claimant file a fully particularised Particulars of Claim.

I respectfully request that the court consider striking out the claim under CPR 3.4.2(a)

because it is not fully particularized nor offers any legal cause of action.

I respectfully request that the court consider striking out the claim under CPR 3.4.2©

because, in light of the failure to respond to both CPR 31.14 & 18 requests, the

Claimant is unable to substantiate their claim with documentary evidence.

Statement of Truth

predefense.pdf

[MandM]

Much better Roy IMO. Save your bullets for later should it move on to AQ stage or beyond

 

M

[B3rty]

Just one thing you need to read and adapt to suit your purpose.....i.e is 4e relevant because I would imagine Sainsburys are the OC and this asks for the assignment docs!!

[roygoodbeat]

Thanks. So the best way is to send this with a copy of my pre court protocols letter and see what happens next?

[MandM]

Just one thing you need to read and adapt to suit your purpose.....i.e is 4e relevant because I would imagine Sainsburys are the OC and this asks for the assignment docs!!

 

Good point!

 

With your PCPs the fact that you've put it in your defence (and keep proof of postage/delivery) should be enough. If you're sending your defence online i'm not sure if you can attach these anyway.

 

M

Edited January 10, 2010 by MandM
typo

[roygoodbeat]

Sent my defence yesterday and it arrived today.

 

Did get a letter today dated 5th January from Sainburys acknowledging receipt of my letter dated 18th December and that they would forward the information to me. (they had 10 days in which to produce this, although I give them some slack as it was xmas). Bit too late now!

[roygoodbeat]

Received this today in response to my pre court protocols issued to Sainsburys on the 18th December and my defense which was submitted to the court on the 12th January.

 

Still no original terms and conditions from reverse of signed application form/credit agreement as requested. They have only sent the top copy which is illegible in places. They have also sent a seperate terms and conditions. Copies are at beginning of thread.

 

No copy of the default either. I am still unsure if these are the documents that they are going to use in court or that they will submit others. (I requested this in my pre court protocols which they failed to respond to within the timescales I indicated, or in time to submit a proper defense other than the embarred one)

 

Basically they are saying pay up or go to court. Advice on next move.

 

 

 

Received this today in response to my pre court protocols issued to Sainsburys on the 18th December and my defense which was submitted to the court on the 12th January.

 

Still no original terms and conditions from reverse of signed application form credit agreement as requested. They have only sent the top copy which is illegible in places. They have also sent a seperate terms and conditions. Copies are at beginning of thread.

 

No copy of the default either. I am still unsure if these are the documents that they are going to use in court or that they will submit others. (I requested this in my pre court protocols which they failed to respond to within the timescales I indicated, or in time to submit a proper defense other than the embarred one)

 

Basically they are saying pay up or go to court. Advice on next move.

 

http://i663.photobucket.com/albums/uu351/roygoodbeat/SCAN0054.jpg

 

http://i663.photobucket.com/albums/uu351/roygoodbeat/SCAN0055.jpg

[roygoodbeat]

Any advice from my last post. Need to make a response.

[MandM]

List the items not returned in response to you CPR requests that are of benefit to your defence. Write and remind them that they are obliged to supply you with these, or you will seek order from the court and may even request that their claim be struck out.

 

Allow them a further 7 days to comply or they will leave you no alternative other than to report their actions to the court in that they are frustrating your efforts to compile an adequately particularised defence.

 

My guess is that they will now let it drift on to AQ stage, but you can cross that bridge if you come to it.

 

Hopefully others will post up with further info.

 

M