Help Needed for Court Case Please

[loopy-loo]

Hi, If you could post a copy of the CPR18 in the morning that would be great. Thank you.

 

Loo.

[vjohn82]

Whilst I agree with vjohn82 post #17, there is some debate over whether or not the DCA can send it.

 

I have read lots on this and it will depend on what judge you get I think.

 

However... I think s.196 can still be relied upon to have been sent by recorded service... if it has not then I would argue that the account has not been assigned lawfully.

[supasnooper]

Hi, If you could post a copy of the CPR18 in the morning that would be great. Thank you.

 

Loo.

 

 

Link to CPR 18 letter below -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1720354.html

[hungrybear]

Thanks snoops,

sorry loo I got caught up in shall we say some 'office politics' this morning, but at least someone sorted you out, thats the main thing

[GhostDebt]

Hi hungrybear.

 

No problem on the comments appreciate the input.

Helps everybody in the long run.

 

I don't know half as much as most, as still learning but the reason for my comment was based on posts by Goldlady and IGNM on my thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/184852-c-l-finance-ge-5.html

post #92

 

which says

---

 

Quote:

Originally Posted by Goldlady

Hi GD, firstly I have come across two judges so far who think the notice of assignment can come from the assignee - which is not my interpretation of the LPA 1925 however that seems to be the current thinking.

 

The LPA doesn't say who the Notice should come from however Holt v Heatherfield Trust [1942] 2 KB 1 is authority for the proposition that it can come from either the assignor or assignee (see Treitel "An outline of the law of Contract" (sixth edition at page 274)

---

I agree s.196 can still be relied upon as well.

 

Hi Loo

 

Hope you managed to get the letters off ok today.

 

Keep us posted how you get on and what reply you get and I'm sure that you'll get plenty of help.

 

Regards

[loopy-loo]

Thanks for all your help. I will let you know as soon as I receive a response.

 

Loopy-loo

[loopy-loo]

Hi Guys

 

I've not received a response from the solictors yet and am conscious that I am running out of time to submitt my defence before the Christmas deadline. I'm not sure how to put this together, is it possible that someone could give me help?

 

Thank you.

 

loopy-loo

[hungrybear]

heres one to get you started, amend to suit and post for comment would be my advice:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/217553-link-needed-embarrassed-defence.html#post2399919

[GhostDebt]

Hi loo.

 

If you don't have any documents from them then the embarressed defence should be the way forward and as hungrybear said post up for comments before sending it.

 

Regards

[loopy-loo]

Thanks HB for the link.

 

I have made a few amendments and have attached the revised defence below:

 

In the Northampton (CCBC)

Claim number XXXXXX

 

 

 

 

 

Between

 

 

CL Finance Ltd – Claimant

 

 

 

And

 

 

 

XXXXXXXXX - Defendant

 

 

 

 

 

 

 

Defence

 

 

1. I XXXXXXXXXXX of XXXXXXXXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

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. I am embarrassed at pleading to the particulars as they fail to comply with the Civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974.

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit Agreement and the Default Notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence.

 

7. Further more the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925.

 

8. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularized the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

9. I will now look at the important issues relating to this case which must be brought to the courts attention

 

Pre-action protocols

 

10. The claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation.

 

The Request for Disclosure

 

11. Further to the case, on 9 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, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

12. 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.

 

13. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists.

 

The Credit Agreement

 

14. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

15. Firstly, the agreement must contain certain 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)

 

16. 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

 

17. If the agreement does not contain these terms 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

 

18. Notwithstanding point 17, 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

 

19. 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 with127(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).

 

20. 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.

 

21. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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."

 

22. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

The Default Notice

 

23. 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

 

24. It is neither admitted or 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

 

25. Notwithstanding point 24, 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)

 

26. 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

 

The Assignment of the debt

 

27. As stated in point 7, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and furthermore I require the claimant to disclose proof of posting per s196 LoP Act 1925

 

28. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

 

29. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their name

 

Conclusion

 

30. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

31. I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.

 

33. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

34. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

35. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

Statement of Truth

 

 

I XXXXXXXXXXXXXXXXXX believe the above statement to be true and factual

 

 

Signed .....................

 

Date 22 December 2009

 

I wait your comments.

 

Thanks Loopy-loo.

[Docman]

hi loopy-loo

 

The defence is fine except that it a bit too long. There is a limit of 8000 characters (including spaces) for defences filed on line. Yours is nearly 12,000, so it needs some editing.

 

From the documents you have posted, it looks like the NoA is valid until such time as you see the actually Deed of Assignment to check it out. You don't appear to have been served with either a copy of the agreement or the Default Notice. I suggest your defence should go on about the lack of documents but it is hard to comment about the CCA in the way you have because you haven't had a copy.

 

I suggest you take out from the defence paragraphs 14 - 22, 26, 33 & 35. I would also amend paragraph 34 to ask the court for permission to file an amended defence 'if and when the claimant complies'. As it is drafted the paragraph looks more like an assumption on your part.

 

Best of luck.

 

Doc

[loopy-loo]

Thank you Docman I have amended it as follows and will submit it today.

 

In the Northampton (CCBC)

Claim number XXXXXX

Between

CL Finance Ltd – Claimant

And

Loopy-Loo - Defendant

 

Defence

1. I XXXXXXX of XXXXXXXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

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. I am embarrassed at pleading to the particulars as they fail to comply with the Civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974.

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit Agreement and the Default Notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence.

7. Further more the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925.

8. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularized the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

9. I will now look at the important issues relating to this case which must be brought to the courts attention

Pre-action protocols

10. The claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation.

The Request for Disclosure

11. Further to the case, on 9 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, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

12. 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.

13. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists.

The Default Notice

14. 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

15. It is neither admitted or 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

16. Notwithstanding point 15, 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)

The Assignment of the debt

17. As stated in point 7, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and furthermore I require the claimant to disclose proof of posting per s196 LoP Act 1925

18. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

19. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their name

Conclusion

20. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

21. I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.

22. Alternatively, I respectfully request the court for permission to file an amended defence 'if and when the claimant complies'. As it is drafted the paragraph looks more like an assumption on your part.

Statement of Truth

I XXXXXXX believe the above statement to be true and factual

Signed .....................

[vjohn82]

Looking good

 

Good luck and Merry Xmas!!!

[loopy-loo]

Thanks everyone for all your help, I hope that I filed it in time.

 

Wishing you all a MERRY CHRISTMAS!

[loopy-loo]

Hi all, Happy New Year to you!

 

I've now received a letter of acknowledgment of my defence dated 29/12/09 stating "A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen. Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

 

Is there anything I need to do at this stage?

 

Loopy-loo

[GhostDebt]

Not really.

If they decide to proceed the court will send you an allocation questionnaire, if it is stayed then it sits there until the stay gets lifted.

This could be them telling the court to proceed, or you applying to strike it out, but there is a cost to lift a stay.

 

Regards

[loopy-loo]

Thanks Ghostdebt.

 

Just one thing, if they don't lift the stay and I then apply to have the the case struck out, will they then be able to bring the case back to court at a later date?

[GhostDebt]

As I understand it they can't if it has the same POC, but I honestly would wait for further comment on this as I'm not sure.

You just have to be careful because if you apply to lift the stay and get it struck out the judge may decide not to in which case you've lost that money initially.

 

See here for other info.

http://www.consumeractiongroup.co.uk/forum/legal-issues/210585-claim-struck-out-can.html

[loopy-loo]

Hi there, I have today received an allocation questionnaire (N149) from the Court which has to be returned by 19 February 2010.

 

Can anyone please give me some help in completing this and let me know what happens next?

 

Thank you.

 

Loopy-Loo

[vjohn82]

Hi there, I have today received an allocation questionnaire (N149) from the Court which has to be returned by 19 February 2010.

 

Can anyone please give me some help in completing this and let me know what happens next?

 

Thank you.

 

Loopy-Loo

 

Have attached an AQ help form I put together. I have also attached a draft order for directions. This means you want certain documents to be disclosed and are requesting the court to order them (i.e. directions for hearing - if the Claimant cannot produce them the court should strike the claim out).

 

Section G (other information) needs to provide reasons why you want the documents in the draft order. You can think of the reasons yourself or use some of the ones I attached... make sure you remove the references to HFO Services/Capital etc.

 

Make sure you post up whatever you are thinking of including so we can check it before you submit it.

AQ Help.pdf

vjohn82 Draft Order AQ.doc

vjohn82 Section G AQ.doc

[loopy-loo]

Thanks VJ.

[loopy-loo]

With the help of the site and information provided by VJ I have put together the following but am not sure if it is correct so would appreciate any comments.

 

In the XXXXXXX County Court

Claim number:XXXXXXXX

Date: 15 February 2009

Between

CL Finance Ltd - Claimant

and

- Defendant

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

1. Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

2. Document, contract or deed of assignment for the account mentioned in the Particulars of Claim from Santander Cards Ltd to CL Finance Ltd.

3. The executed Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the Claimant seeks to rely upon.

4. Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

5. Copies of any statement or other document relied upon including proof of the amount of the debt and how it was accrued.

6. If the Claimant fails to comply with this order, or any specific direction/disclosure, the claim will be struck out.

The Defendant shall within 14 days thereafter file and serve the following:

· An amended defence sufficiently particularised in response to the documents supplied by the claimant.

In the xxxxxxxxxx County Court

Claim number xxxxxxxxxxxxx

Date: 15 February 2009

Between

CL Finance Limited - Claimant

and

xxxxxxxxxxxxxx – Defendant

Allocation Questionnaire Section G: Other Information

If the court is in agreement, the defendant respectfully requests that 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.

The production of the documentation mentioned in the Draft Directions will offer the court the opportunity to assess the right of the Claimant to bring action, assess whether a Default Notice was served correctly and in the prescribed form, assess the document purporting to be a Consumer Credit Agreement for the prescribed terms and its original format.

Without production of the requested documentation, 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 judgement 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 and63, section 127(4) precludes the court from making an enforcement order.

This 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.

[citizenB]

Looks fine to me. Make sure you get it submitted on time.

[loopy-loo]

Thanks for all your help. I have to submit by 19th, will I need to send copies to the other side or just return to the court?

[vjohn82]

It would be the proper, just, genuine, reasonable and fair thing to send a copy to the other side ;);)