CL finance Altered Application into Agreement

[vint1954]

I'm in the same boat - default remedy by 23/3 but the account was sold on 20/3.

 

 

This should be enough to sink them. They have sold the account, before you can rectify, so you had no choice. The cannot therefore claim the benefit of s87.

 

This previously posted by surleybonds.

My fellow Caggers, back to the general issue ..

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '.. to convey the truth with sufficient accuracy.'

 

 

 

FURTER.

 

I am yet to be persuaded that in the context of a regulated consumer credit agreement and the receipt of an express notice or activity on the part of the creditor consistent with termination, that the agreement does not terminate unless and until the debtor signifies by word or deed that he accepts termination. The damned notice of termination says what it says.

 

For sure in those cases where the termination amounts to the anticipatory breach of the agreement by one of the parties to that agreement the law says the innocent party should elect either to accept the termination or inform the terminating party that he requires them to perform their obligations owing under the agreement. But we're not concerned with an anticipatory breach by the creditor. It's not as if the creditor having agreed to give credit has then decided not to loan after all. What the creditor is doing is calling in the loan he has already made ahead of the time when it would ordinarily have been repaid.

But in a regulated consumer credit agreement, what in reality can the court genuinely expect the innocent, ordinary and unsophisticated debtor to a consumer credit agreement, who is strapped for cash, do in response to the demands of the creditor? Write a letter saying 'I accept your repudiatory breach of contract'?. Of course not. Well I say of course not. That is a ludicrous expectation to hold. Was the Court of Appeal ever concerned to ascertain in Woodchester v Swayne & Co that Swayne had accepted Woodchester's termination on the back of their ineffective DN? Mais non. Swayne & Co had done nothing. Swayne & Co were a firm of solicitors in Cardiff for crissake. Yet they still were treated to the benefits of the Act as one intended for the protection of consumers. Swayne were, according to claue 9.1 of the terms of the agreement between Woodchester and Swayne, in repudiatory breach of contract, entitling Woodchester to immediately terminate the agreement. But all the same, Kennedy LJ held that the provisions of section 87 dictated what Woodchester were required to do in order for Woodchester to become entitled to claim early payment and demand the return of the photocopier let on hire under the agreement. This was regardless of what the agreement said.

Indeed in the context of activity, if Swayne & Co had paid some money to Woodchester they would have done themselves a favour because those payments would have been applied to the credit of the arrears.

I appreciate that counsel for banks are currently advancing that the absence of some clear acceptance on the part of the debtor operates to negate the meaning and intent of the creditor's express termination. The latest clever arguments seem to be that a DN is not required at all where the agreement has no fixed duration. But that's counsel pushing at the boundaries and thinking out the box in a novel way. All good lawyers do that. They invent and shape their arguments to distinguish their case from those which suggest they're on a loser so as to suit the requirements of their client. They have no idea as they're inventing and shaping that the argument they've conjured will succeed. But they sigh with relief when they appreciate their opponent is a LiP.

I do not buy in to the notion that unless the debtor is active or inactive in a way somewhat different to the way he was active or inactive prior to the termination, that the agreement has endured despite the delivery of an express notice of termination, or despite activity on the part of the creditor which is in keeping with the creditor having terminated the agreement. Remember this : when Woodchester v Swayne was first decided, before it got to the Court of Appeal, Assistant Recorder Higginbottom found for the creditor on the basis that

"A default notice served under Section 87 and Section 88 is not rendered defective merely because the action indicated as required to be taken to remedy the breach is in fact over and above the action necessary to remedy that breach."

The Assistant Recorder did not add 'and because the debtor had failed to serve a notice of acceptance of termination or had conducted itself in a way different to the way it had conducted itself before termination or before the creditor behaved as if the creditor had terminated.'

Kennedy regarded the Assistant Recorder's judgment 'as a model of clarity'. But he still found the decision was wrong. He held quite the reverse to the Assistant Recorder. He held the DN was rendered defective because the action indicated as required to be taken to remedy the breach was in fact over and above the action necessary to remedy that breach. He did not qualify that view by saying it was reached owing to the activity or inactivity of the debtor or that his view would have been different depending on what activity or inactivity there may have been on the part of Swayne & Co. As we know, because Swayne got hit with a judgment for the actual arrears, Swayne did nothing.

Woodchester v Swayne is still good law. Swayne & Co did the right thing. They were well placed to do the right thing. They were a firm of lawyers. The right thing they did was to appeal the decision. The result speaks for itself.

x20

 

If in court this afternoon for an SJ hearing. I've not yet made anything of the unlawful rescission, because I've only just got a copy of the DN. Not had a termination notice either.

 

I think I may have enough to get the SJ application struck out anyway, but am considering if I should use unlawful rescission too. My only question is, don't you have to agree to the unlawful rescission - can I do this by stating as much in court today or do I have to write to the creditor?

 

The arrears are stated at approx £1300 - do I need to pay this immediately of claiming unlawful rescission?

 

No go for a claim against it if the judge will not wipe it.

 

It would be nice to think that unlawful rescission is fatal to the claimants case, but I just don't believe it can be that simple.

 

Don't want to hijack the thread, but any advice would be greatly appreciated as I'm in court at 2:30!!

Good Luck

Edited December 21, 2009 by vint1954

[vint1954]

You may well be asked if you accepted the unlawfull rescission. You may have written to them accepting it.

[DonkeyB]

You may indeed. Very slow this Christmas post.

[vint1954]

Highlighted in blue the important part.

[vint1954]

You may indeed. Very slow this Christmas post.

Indeed, and not the OP's fault if the creditors post room is so poor that it looses letters or those communications are not passed on to the legal team. The acceptance would of course have gone to the OC.

[littlebert8]

Thanks Guys. Just to let you know, the judge dismissed the summary judgement and had made the draft orders I suggested.

 

Anyway, the result was what I wanted, but I blew it with the unlawful rescission - I mentioned it, but the DJ didn't seem interested and he was already about to dismiss the application and make my draft orders, so I didn't push it - save to agree that the Deed of Assignment would prove it.

 

I think I blew it because the claimants barrister will now have advance warning of how I intend to defeat the claim at trial. Nice fella, but I reckon he could be dangerous if he spent more than 5 mins looking at the case.

[DonkeyB]

Well done.

 

But he can't alter the facts - their own evidence proves unlawful rescission. They will get your evidence anyway before the case is heard.

 

Now, get looking for unfair charges on the statements and deduct them from the supposed arrears, and see what you get. Then consider whether you want the post office to deliver that letter they have in their system (the one accepting the rescission), or whether you want it to get lost in the Christmas post.

[vint1954]

Well done.

 

But he can't alter the facts - their own evidence proves unlawful rescission. They will get your evidence anyway before the case is heard.

 

Now, get looking for unfair charges on the statements and deduct them from the supposed arrears, and see what you get. Then consider whether you want the post office to deliver that letter they have in their system (the one accepting the rescission), or whether you want it to get lost in the Christmas post.

Yes, well done.

 

The judge will have to concider the Unlawful Rescission at the full hearing.

 

DB,

 

I thought that the letter of acceptance had already been posted;)

 

Dont forget that we now step out of the CCA 1974, and into contract law for Unlawful rescission. A whole new area of fun. Diddydicky likes to roll his sleves up on that one.

[DonkeyB]

I think Vint is right - contract law is the key, as I think the CCA stacks up.

[m4ckk]

Happy New Year All...

 

Update:

I sent this letter to the judge and his reply has spooked me!! Is it because it is not signed... or other reason

 

 

This is the reply from the judge... any clues?? Its got to be in by Wednesday.. Thanks

 

Edited January 25, 2010 by m4ckk

[DonkeyB]

What did the reply say?

[vint1954]

Did you add to the bottom, this is a statement of truth etc and sign it

[Nagasis]

mc4kk, what was your submitted defence?

[m4ckk]

Hi Vint.... No statement of truth or signature was submitted.

 

Submitted docs are on the last page of this thread...

[vint1954]

I think you need to start a new thread on the legal issues forum, asking for urgent advice. The judge seems to be asking you for a full defence. Below is an example of a full defence, though obviously not for your case. You need to make your defence relevent to your case.

 

 

EXAMPLE DEFENCE ONLY>

CLAIM NO: xxxxxxxxxxxxxxxx

 

BETWEEN

Cabot Financial (UK) Limited

Claimant

And

xxxxxxxxxxxxxxxxxxxx

Defendant

DEFENCE

I Mrs xxxxof 171 xxxxxx xxxxxxxxxxxx I am the defendant in this action and make the following statement as my defence to the claim made by Cabot

The Claimant states in their Particulars of Claim that a Credit Card Account number xxxxxxxxxxxxx is the basis of their claiming from the Defendant the sum of £6037.36

 

The Claimant`s 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 the Defendant wishes to draw the Court’s attention to the following:

 

a) The Claimant’s 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.

 

b) No particulars are offered in relation to the method the Claimant has used to calculate any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the Claimant's claim.

 

c) No agreement appertaining to the account which the Claimant cites in their Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has been served attached to the claim form.

 

d) No evidence of either the scope and nature of any default nor proof of any amount outstanding on the alleged account has been served attached to the claim form.

The Defendant therefore puts the Claimant to Strict Proof in the following matters:

 

1) The Claimant has to date failed to supply to either the Court, or the Defendant, any true copy of any alleged agreement, and further, the Claimants denial of ever having any copy, True or Original, of any legible agreement containing the prescribed terms appertaining to the account that the Claimant bases their claim upon.

2) That the Claimant should present to the Court and the Defendant any true copy of any alleged agreement which contain the prescribed terms. PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

3) The Claimant has to date ignored a request made by the Defendant under the Civil Procedure Rules for a copy of any Original signed agreement held by the Claimant that appertains to their claim.

 

4) That the Claimant should present to the Court and the Defendant a full and correct statement of account from inception of the account to the current date, including proof of purchases made by the Defendant using the Credit Card and interest, penalties and other charges added to the account.

 

5) That the Claimant should present to the Court and the Defendant a True Copy of the complete and correctly constituted Notice of Assignment appertaining to the account, and of delivery of the said Notice of Assignment to the Defendant, as per The Law of Property Act: vis: proof of recorded or registered posting and delivery to the Defendant

 

6) That the Claimant should present to the Court and the Defendant a True Copy of the complete and correctly constituted Default Notice the Claimant sent to the Defendant.

 

And further

 

7) The Claimant has claimed interest under the County Courts Act 1984, whereas the Claimant is, or should have been, fully aware that to do so was unjust and an abuse of Court. The Defendant avers that the Claimant could not, by their own hand, have had sight of any agreement upon which to base their claim for interest.

In the matter of 1)

 

The Defendant avers that the Claimant has no right of action.

 

a) It is drawn to the Court`s attention that the Claimant has, by their own hand, denied being in possession of any legible agreement containing the prescribed terms appertaining to the account which he bases their claim upon.

Further:

 

b) the Claimant refused to supply a True Copy of the alleged Agreement to the Defendant in reply to his lawful and reasonable request made under the Consumer Credit Act.

 

For clarity, the Consumer Credit Act s78(1) states:-

 

 

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor,

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act 5.S78(6) sets out the consequences of failure to comply with such a request and states:-

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence

 

It is respectfully drawn to the Court’s attention that the Claimant has failed to comply with the Defendants request and is therefore in clear default of its obligations under s78 (1) CCA.

The Defendant avers that the Claimant has no right of action due to s78(6) until such time as the default is remedied and the True Copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

For clarity, The Consumer Credit Act s127(3) provides that the Court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. The prescribed terms are laid down in the judgement TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, vis:

 

"- 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."

 

If therefore any of the prescribed terms are missing, or incorrect, the agreement is not enforceable against the debtor, and the Court is precluded from making an enforcement order.

 

Since the Claimant has produced to neither the Court nor the Defendant sight of any agreement, and has by the Claimant’s own hand denied having any agreement the Defendant avers that the Claimant has no right to claim, and any claim made by the Claimant is knowingly vexatious, and that any judgement obtained by the Claimant is wrong in law and cannot stand.

 

It is further drawn to the Courts attention that the Claimant, having clearly failed to comply with the Defendants request and therefore being in clear default of their obligations under s78 (1) Consumer Credit Act 1974 has, and had, no right of action until such time as the default is remedied, and a True Copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

An Act of Parliament, the Consumer Credit Act 1974, precludes a creditor bringing an action before the court where they have themselves failed to discharge their obligations under the Act.

Therefore the Defendant respectfully suggests that the only just action that can be taken is the Claimants case be struck out forthwith.

 

In the matter of 2)

 

The Claimant has ignored the Defendant’s lawful and reasonable request to supply a copy of the alleged Original Agreement made under the Civil Procedure Rules.

 

The Claimant has stated that they are not in possession of a legible copy, whether True or Original, of the alleged Agreement upon which to base their claim. The Defendant avers that it follows that the Claimant was not in possession of any such agreement when commencing their original claim, nor when pursuing their further claims based upon it.

Notwithstanding the Claimant’s use of the Northampton Bulk Centre to file claim, and the leeway given under the online filing system to Claimants in terms of including documentation with their claim, it remains a legal prerequisite that the Claimant should be in possession of such documents as their claim is based upon at the time of presenting a claim.

Once such claim is moved to another Court, the Plaintiff loses any leeway as is offered by Northampton Bulk Centre online filing system.

However, the Claimant has demonstrated by their own actions, and in their own evidence that they were not in possession of the documents that they based their claim upon, and therefore the Defendant avers that the Claimant’s action in this matter is both vexatious and an abuse of the Court process.

In the matter of 3)

a. In response to the purported credit agreement supplied by the Claimant,

it is submitted that the document fails entirely to comply with Consumer Credit

Legislation as laid out below.

b. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

c. 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.

d. 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)

e. 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.

f. It is submitted 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. These terms must be contained within the agreement. They cannot be contained

within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.

g. 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."

h. 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 .

i. 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.

j. 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).

k. Furthermore 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.

 

 

 

 

In the matter of 4)

 

The Claimant claims to have “purchased” a debt of £6,037.36, notwithstanding that the Claimant has by their failure to supply to either the Court or the Defendant an agreement meeting the criteria laid down under the Consumer Credit Act as noted at 1 above.

 

In doing so, the Claimant has offered to neither the Court nor the Defendant any proof of owning the debt claimed, nor what form such ownership takes, whether full, or equitable, in novation, or if indeed whether the Claimant owns the alleged debt at all.

 

Notwithstanding the vagueness of the Claimants Particulars of Claim, vis the term “purchased”, since the Claimant is not joined in Claiming by the alleged Original Creditor, the Claimant seems to ask the Court to believe that either an Absolute or Equitable Assignment of the alleged debt has taken place whereas with sight of no Agreement and no proof of Assignment, neither the Court nor the Defendant can ascertain whether:

a) Any Assignment has legally taken place

b) Whether such Assignment was Equitable or Full, or

c) Whether such Assignment was allowed for or strictly prohibited within the terms and conditions of the alleged account, or

d) Whether the Claimant is in fact entitled to claim against the Defendant

 

For the assignment of any debt to be effective, and so giving the Claimant a right of action, a valid Notice of Assignment must have been sufficiently served on the defendant using a registered postal service pursuant to The Law of Property Act 1925 s196(4) before court action is commenced.

The Defendant therefore puts the Claimant to strict proof of the existence, content and correct and full delivery to the Defendant pursuant to The Law of Property Act 1925

 

s196(4) of a valid Notice of Assignment without which the Claimant has no right of action against the Defendant.

 

In the matter of 5)

 

The Defendant wishes to bring to the Court’s attention that he has never received any Default Notice regarding this alleged account.

 

The prescribed format for such document is laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

The Defendant respectfully brings to the Court’s attention that 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 an unlawful rescission of contract which would prevent the court enforcing any alleged debt.

 

The Defendant puts the Claimant to strict proof that any Default Notice was:

 

a) sent to the Defendant,

b) received by the Defendant as the Law demands by way of the Claimant supplying to the Court proof of receipt by the Defendant, and

c) that any such Default Notice was lawful and valid, vis: that any such Default Notice was accurate in terms of both the scope and nature of breach and included an accurate figure required to remedy any such breach.

 

 

In the matter of 6) The Defendant wishes to bring to the Court’s attention to EXHIBIT”IL11 “Supplement Witness Statement pursuant to the order dated 17th June 2009. The Claimant requested and was granted an adjournment to be given time to file an additional statement from an experienced Barclays Bank employee stating that the prescribed terms were in fact printed on the back of EXHIBIT “IL2” ,EXHIBIT ”IL11“ Is a blank piece of paper.

In the matter of 7) The Defendant wishes to bring to the Court’s attention to the fact that I believe this account to be fraudulent I have informed both Cabot and Barclays Bank. Another couple were residing at the addresses between 2000 and 2008, Mr James Gow and his partner Ms Silvia Marignane. I have since learnt that Mr James Gow passed away in October last year. However I have enclosed a witness statement from Ms Silvia Marignane.

 

 

In the matter of 8) The Defendant wishes to bring to the Court’s attention to EXHIBIT”IL4 “(34) statement dated 4th March 2003, showing the credit card being used in Lille France. I will submit strict proof to the court my travel document for February 2003 in its original form showing that I could not have been in Lille France during this period. At this time I was still using my Romanian passport.

Had I left the UK and returned in this period my passport would have been stamped and I would have needed a schengen visa for the first port of entry into Europe. My passport will not show any such stamps or visa for this period.

 

 

Statement of Truth

 

 

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

[m4ckk]

Sent in the defence... which was accepted by the CC judge.

 

Then.... a letter came from CL reducing their settlement offer!!

 

What next??

[m4ckk]

I have a document sent to me and the court from cl finance stating that all credit agreements are stored on computer files off site and they contend that a copy is sufficient. I have for weeks to get a defence due to adjournmentt. any advice please

[tiokim]

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