Are these CCA's enforceable

[AndyOrch]

What would be the likely outcome of submitting one day late??

 

Nothing major.Why Shirei?

Dont forget you are only ordered to " May submit an amended defence" if you are happy with your initial holding defence then this would save me a

few hours work.

 

Andy

[shirei12]

No Andy I was just wondering in case I cant get it in on Monday thats all.

[AndyOrch]

I would hope that if I can take time on my Sunday off to draft it you could assure its submission on Monday?

[shirei12]

Sorry Andy I thought you were doing it on Monday,I apologise for the misunderstanding on my part. I appreciate your time and assure you it will be submitted Monday.

[AndyOrch]

DEFENCE

 

1. I, *************** of ************************* *********make this statement as my defence to the claim brought by **** Bank Ltd.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim

 

3. In accordance with the DJ xxxxxxx General Form of Judgment Order dated 19th October 2010.

 

The Claimant to file and serve fully particularised particulars of claim by 4.00 p.m on 15th November 2010 to include a copy of the agreement in accordance with PD 16 C.P.R.

The Claimants have provided a fully particuarised Claim but have failed to submit a copy of the agreement in accordance with PD 16 CPR but have provided a reconstituted version

from records.

 

4. It will be the defendants assertion that such reliance is misplaced and that any reconstituted copy can not be relied upon for the purposes of enforcement but only for the compliance of Section 77/78

of the CCA 1974 2 " Duty to give and supply" information and not for the compliance of section 61 " Signing of agreements"

 

5. It is therefore averred that reconstituted documents whilst they may be acceptable in response to sec 77/78 requests they cannot be considered " proof purpose" of an executed agreement and the Claimant must provide the original signed (or copy ) to enable enforcement.

 

6.Therefore in light of the above I would contend that no copies of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has been served following the above Order or attached to the original claim form.

 

7. Also Reg. 7 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 makes further provision in respect of copies where the agreement has been varied under the heading “Copies of agreements or security instruments where the agreement or security instrument has been varied "

 

Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either—

 

(i). an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

 

(ii). an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act”.

 

 

8. It is respectfully submitted that the court should adopt the same reasoning as Judge Waksman in his High Court ruling in determining this issue, that is that documents supplied as proof of an executed agreement must be copies of the original documents in their original form as signed by the debtor, irrespective of whether or not it finds that the creditor has supplied reconstituted or copy documents it may claim were supplied at the time of signing.Failure of the Claimant to provide the original signed executed agreement should prevent further enforcement and I respectively request this claim be struck out for non compliance of the DJ xxx Ordered dated xxxxxxx.

 

 

 

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

Signed

 

XXXXXXXX

Defendant

[shirei12]

Many thanks Andy,this was put through the letterbox at the court last night. I will phone later in the day to confirm receipt. Need to e mail a copy to sols if I can find an e mail address.

Your help is always appreciated.

[AndyOrch]

Ok Shirei hope it does the trick:wink:

 

Andy

[shirei12]

I wonder if you could explain this reply from courts in responce to amended defence Andy,confused about "further allocation questionnaires":???:

 

"With reference to the above case number please be advised that your file was referred to the Judge for further directions after we received the amended defence from the defendant. The District Judge has asked that both parties file further allocation questionaires to be returned to the Court by 11th January 2011."

[AndyOrch]

Nothing unusual Shirei for the DJ to request further AQs once and order has been complied with.They amended their P.o.C you amended your defence the extra AQ is intended to narrow differences and possible settlement.Just bump a few days before submission date

 

Regards

 

Andy

[shirei12]

Thanks Andy,will the court send out another AQ to fill in??

[AndyOrch]

They may but if not just download a copy and complete on screen but keep an eye on the dates and submit on time.

 

Andy

[shirei12]

Yes I can download one, but how must it differ from the one I have already filed??? Not sure how to proceed.

 

Can I take this opportunity to wish you and your loved ones a Very Merry Xmas and a Happy New Year Andy from our house to Yours

[AndyOrch]

It wont differ that much apart from you may wish to mediate or submit different or further directions.

 

Merry Xmas and a happy New Year to you and yours also Shirei all the best for 2011.

 

Regards

 

Andy

[shirei12]

Hi Andy,I am bumping thread as asked.Will you be available Tuesday to go over AQ?

I hope you had a Happy Xmas,and wish you a prosperous New Year.

[AndyOrch]

Hi Shirei

 

Ok if you can post up your initial AQ and any directions and theirs if you have a copy to hand.

 

Regards

 

Andy

[shirei12]

A=no

B=no

c=yes

D=0

E=no

F=no

Other info=

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a particulrised Defence by failing to provide information first requested under CPR31.14 on 14th August 2010.( copy attached) I believe the reply (attached) to be entirely misleading as to suggest that matters were "on hold". To date the documents requested have not been furnished.I therefore request the Courts permission to submit the following Draft Direction compelling the Claimant's compliance.to enable me to file a particularised Defence.

Please find the following attached to this Allocation Questionaire: 1)Section G, Copy of CPR31.14 Letter and Claimants Response letter. 2)Section G, Further letter promising furnishment of Documents within 7 days. 3)Section G, Other Information.

 

 

 

Draft Order for Directions

1 The Claimant shall not later than 4:00pm on ( ) (being a date 2 weeks from the date of the

making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

(a) the executed regulated consumer credit agreement made between the defendant and HFC Bank

plc.under reference xxxxxxxxxxx together with any terms and conditions that applied to it, the

original document must be brought to the hearing.

(b) the default notice together with proof of service the original document must be brought to the

hearing

© a full and complete statement of account including all payments made and charges applied covering

the period beginning with the day of the making of the agreement and ending on the date of the

commencement of this case.

(d) any other documents on which the claimant will rely

(e) documentation to verify figures in Particulars of Claim.

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the^ast track and

4 The Defendant shall file and serve an Amended Defence by 4:00pm on ( ) being a date 6 weeks

from the date of the making of the case management directions)

 

Section G

 

Section G/Other Information.

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

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(l)(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.

It is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

Therefore it stands to reason that this document must be disclosed before this case can progress any further.

 

 

Andy I didnt get a copy of their AQ,I did ask for one from the courts but they told me they dont supply. Hope this is what you needed.

 

Regards Shirei

[AndyOrch]

Hi Shirei

 

Ok its going to be basically the same except for a few tweaks. First tweak would be to offer the opportunity of a settlement.This in no way an admittance but an opportunity for the Claimant to come to some agreement if they so wish to after all you did have use of their facility and you dont want to appear to be an avoider in the DJs eyes.You are fighting this on a legal technicality which in the balance of probabilities could go either way, subject to the DJ.s interpretation of recent cases.Therefore you need to tweak your directions further and state that the Claimant has furnished a reconstituted copy agreement but as the CCA quite clearly states this will or should not uphold for the purpose of enforcement and therefore further request that the original be disclosed before this claim can proceed.Worded correctly he will have no option but to issue a further direction with yours that they be allowed further time to produce it.We know they cant produce it and therefore the unless order should fall in your favor and attain a result of strike out by the dJ with no cost to yourselves..

 

Regards

 

Andy

[shirei12]

Hi Andy,

Thanks for the advise.A few questions if I may. "Ok its going to be basically the same except for a few tweaks. First tweak would be to offer the opportunity of a settlement." Where would I put this, in the directions? Also would I have to state an amount, and what would be a good starting amount? Do I still use "other info " included on first aq?

 

"Worded correctly he will have no option but to issue a further direction with yours that they be allowed further time to produce it." Could you help me word it correctly?

 

Regards

Shirei

[AndyOrch]

Hi Andy,

Thanks for the advise.A few questions if I may. "Ok its going to be basically the same except for a few tweaks. First tweak would be to offer the opportunity of a settlement." Where would I put this, in the directions? No in Section Settlement Also would I have to state an amount,No and what would be a good starting amount?Nil Do I still use "other info " included on first aq? Yes but adapt it to include what I have stated above ie after the last hearing and further directions the Claimant has still failed to furnish the original signed agreement only a reconstituted copy which can not be used to enforce any agreement.Take sections from your Defence I prepared.

 

"Worded correctly he will have no option but to issue a further direction with yours that they be allowed further time to produce it." Could you help me word it correctly? See above and again using sections from the defence as to why the DJ can not allow the reconstituted but must insist that they produce the original.You do understand the principle of Carey and Waksman dont you Shirei?

Dont let the Claimant fob the DJ with a reconstituted it has to be the original only reconstituted can satisfy a sec 77/78 request It cant be used for enforcement.Steer the DJ in ordereing that they either disclose it or he will strike out,then you have a result.

 

Regards

Shirei

 

Regards

Andy

 

[shirei12]

I think I am out of my depth here. Sorry Andy.

[shirei12]

How does this sound for section G

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a particulrised Defence by failing to provide information first requested under CPR31.14 on 14th August 2010.( copy attached) I believe the reply (attached) to be entirely misleading as to suggest that matters were "on hold".

Further to the Judges orders of 19th October 2010,the Claimant has still failed to furnish the original signed agreement only a reconstitued agreement,but as the CCA clearly states this will or should not uphold for the purpose of enforcement. I therefore further request that the original be disclosed before this claim can proceed.

It is therefore averred that reconstituted documents whilst they may be acceptable in response to sec 77/78 requests they cannot be considered " proof purpose" of an executed agreement and the Claimant must provide the original signed (or copy ) to enable enforcement.

It is respectfully submitted that the court should adopt the same reasoning as Judge Waksman in his High Court ruling in determining this issue, that is that documents supplied as proof of an executed agreement must be copies of the original documents in their original form as signed by the debtor, irrespective of whether or not it finds that the creditor has supplied reconstituted or copy documents it may claim were supplied at the time of signing.Failure of the Claimant to provide the original signed executed agreement should prevent further enforcement and I respectively request this claim be struck out for non compliance of the DJ xxx Ordered dated xxxxxxx.

Edited January 6, 2011 by shirei12

[AndyOrch]

Now you are getting the idea shirei ( out of my depth ) Ha ha:razz:

 

Regards

 

Andy

[shirei12]

Thanks Andy . Do I just ask for agreement in draft orders now?

[shirei12]

Would this suffice for directions? I need to get the AQ in the post tomorrow,taking the weekend into consideration.

 

Draft Order for Directions

1 The Claimant shall not later than 4:00pm on ( ) (being a date 2 weeks from the date of the

making of the case management directions) file and serve a verified true copy of the following document mentioned in the Particulars of Claim

(a) the executed regulated consumer credit agreement made between the defendant and HFC Bank

plc.under reference xxxxxxxxxxx together with any terms and conditions that applied to it, the

original document must be brought to the hearing.

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track.

[AndyOrch]

Excellent Shirei

 

So 3 copies Self, Court , Sols (unsigned) together with a cover note to request copy of theirs on receipt.

 

Well done!!!

 

Regards

 

Andy