County Court Claim received MBNA\Restons

[gill5blue]

Hi LB

Restons did not attend court I recieved notice of discontinuance 2 days before court date.

2 weeks before the court date I recieved a letter from Restons asking me to pay the debt at a reduced amount. I ignored this letter, then 1 week before the court date I got a phonecall from Restons asking was I going to respond to that letter, I replied 'no' and then he asked 'if he could ask why not?' and I said 'no'. Then I recieved notice of discontinuance'.

MBNA/RESTONS--If you know they do not have a good case-then all they are doing are playing chicken. I did and won-I am now putting a claim for watsed costs £600 odd.

I would assess the claim if it is no good for mbna then play chicken

gill5blue

[pedross]

Hi LB

 

It got my head spinning at this time of night too. I cannot help you too much at the moment but I agree with snoops that the embarrassed defence is not the way to go. You need to get to the point of your defence and not try and duck and dive out of the conflict.

 

I believe that you have enough information to file a defence. The court may let them off with the quality of the claim details and they do not have to serve a copy of the agreement in the bulk process.

 

You need to cut all the parts which are not to the point and concentrate on the ones that are. The application form is not legible and does not contain prescribed terms and is therefore unenforceable. You need to put the claimant to strict proof that the application form supplied did in fact contain prescribed terms and request that the original is produced to the court to provide the proof.

 

I suggest that you save a copy of your defence on your computor then do another copy using my suggestions and cutting out the points like the ones below. Then post up the new one tommorrow and ask for opinions about the two. When you decide which defence to submit you can do it online.

 

I think I am correct in saying that the claimant will submit a reply to your defence and you then should get the opportunity to put in an amended defence. Hopefully someone can confirm this.

 

I did this quick to try and help so get opinions but more than anything, stay calm, because if you panic you will get less done and make mistakes.

 

Pedross

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

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.

 

b) 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 default notices issued or any other matters necessary to substantiate the claimant's claim.

 

c) 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.

 

d) 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.

Edited February 9, 2010 by pedross

[jason_mnm]

I have filed my defence according to PT advice to give more importance on strike out. Lets see what Court decides. U can check PT's thread where he gives excellent advice to file defence..

 

By the by any successful case against MBNA after January 2010 please?

[citizenB]

 

By the by any successful case against MBNA after January 2010 please?

 

Jason, pop "WON" into the search facility at the top of the screen and see what pops up. Or look in DCA Success forums.

[gh2008]

Here goes another stab at my defence - the documents they are relying on is the Application Form! - reconstructed form and dodgy T&C's

 

Any help and advice with correct puntuation, terminology - the whole thing etc (lol) greatly appreciated! I am very vauge about the beginning with the embarrised thing as I had a response from Restons finally today so no CCA - just application form I am still embarrised? - My cheeks definately are - Was Served on 16th Jan -I am working on deadline tomorrow as I acknowledged on 28th Jan

 

In the Northampton county court

 

The Defendant is unable to plead due to the Claimants failure to comply with its CPR 31.14 duties in disclosing all of the requested documents

 

The Defendant is embarrassed at the lack of detail within the claimants claim and therefore cannot plead due to the Claimants ongoing failures.

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

 

Claim number: xxxxxxxx

 

Between

 

MBNA EUROPE BANK LIMITED Europe Bank Ltd

 

And

 

Mr xxxxxxxxxx

 

1. Ixxxxxxxxxxxi of xxxxxxx am the Defendant in this action and make the following statement as my defence to the claim made by MBNA Europe Bank Ltd

 

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 particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

 

They've issued you with a claim for money you owe, given you the account number and the signed application form ......

 

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.

 

You *may* just get away with that - but why are you saying it??

 

b) 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 default notices issued or any other matters necessary to substantiate the claimant's claim.

 

I thought you had the Default Notice .... and the application form showing the nature of the account .....

 

c) 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.

 

Nope, but they have sent it to you and they don't need to send it attached if issued through the bulk centre

 

d) 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.

 

true, but do you know what it means?

 

5. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

The general rule

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer

Credit Act 1974;

 

That need re-wording they haven't said it is under teh CCA 1974 ..... you need to show that it is!!

 

6. Consequently, it is proving difficult to plead to the particulars as matters stand.

The Request for Disclosure

 

7. Further to the case, on 16/01/2010 I, the Defendant requested the disclosure of information pursuant to CPR 31.14, namely the ..... The claimant's solicitors requested “proof of signature” despite corresponding with Defendant previously.

On the 18/01/2010 a second request for the disclosure of information pursuant to CPR 31.14 was sent and received to the claimant. On 25/01/2010 the claimants solicitor required a copy of my driving licence or passport to confirm identity.

On 28/01/2010 a third request was made for the disclosure of information pursuant to CPR 31.14 which is vital to this case from the claimant. On 09/02/2010 the Defendant received incomplete documents from the CPR 31.14 request for disclosure.

 

8. To date I have not received all documentation requested under the CPR, 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.

 

You need to put in details of what they have sent, what they have not and how you consider them to be obstructing you in defending the claim

 

9. In the build up to this action, on the xx/xx/2009 I wrote to MBNA Europe Bank Limited requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974. This request was received on the xx/xx/2009.

9.1 On xx/xx/2009 the claimant supplied a copy of an application form, which was illegible, the claimants did not send a copy of the original terms and conditions referred to in the application form, nor did they send a signed statement of account.

 

The claimant thus was, and still remains in default of this request.

 

You need to put a paragraph in here about the consequences of being in default of that request (check out s.78(6) - you should find it useful)

In the alternative, which is denied, that this application form is indeed an agreement pursuant to the CCA 1974 it is averred tthat is is fatally flawed and therefore irredeemably unenforceable. It contained none of the terms required by the Consumer Credit Agreements Regulations 1983. The reverse of this application form does not belong on the front and is a reconstruction. Accordingly I wrote to the claimant setting out the issues

 

You need to put in a bit about the prescribed terms. and s.61 and s.65

 

10. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

I would ask for summary judgement against the claimant rather than a strike out as I cannot see how you will get a strike out JMHO though

 

11. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules:

 

11.1 A copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

Why are you asking for that - they've sent it to you twice now!!!

 

11.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

11.3 A copy of any Default and/or Termination Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

 

and they've sent this as well

 

11.4 A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- 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;

 

11.5 A transcript of all transactions, including charges, fees, interest and alleged repayments;

 

11.6 A full breakdown of how the sum claimed has been calculated;

 

11.7 Any other documents the Claimant seeks to rely on.

 

12. It is further denied that the Claimant is entitled to the sum of £xxxx.xx claimed or any other relief thereon.

Conclusion

 

13. In view of matters pleaded I respectfully request that the court order the claimant to 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.

 

14. 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 supplied by the claimant unenforceable.

 

very risky IMHO

 

 

15. The claimant's case cannot succeed as matters stand. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

if it cannot succeed you should be asking for summary judgement CPR24 IMHO

 

16. 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, the Claimant's behavior is entirely vexatious and wholly unreasonable.

 

very shaky - what evidence have you got for this??

 

17. I respectfully ask the permission of the court that I be allowed to amend this defence and counterclaim when the claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

This claim should never have been brought before the court as the claimant would most certainly be aware of the case law quoted and that such action would have little prospect of success without the credit agreement or a copy of it, therefore I invite the claimant to give serious consideration to withdrawing this claim. Should the claimant fail to withdraw their claim I shall request the court consider costs incurred by the Defendant in defending this claim and shall forward a schedule of costs for the court to give consideration to should this proceed to trial and judgment be given in my favour.

 

what case law quoted?? little prospect of success - you said no prospect earlier and s.78.6 says no as well, and remember they are saying there is an agreement and they have produced it .......

 

 

Statement of Truth

 

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

 

Signed

Date xxxxxx/2010

 

 

Hi,

 

Ok, in places you may think I've been harsh - but no where near as harsh as the other side would be.

 

I would seriously think about this defence and why you are writing some bits of it.

 

check out s.78.6 it could be a very straightforward saviour, as it will at least buy you time (as they can rectify their default with a bit of effort and paperwork) you will still then have the chance to amend your defence and take the agreement apart piece by piece.

 

If there are mistakes of mine above then I apologise - I'm rather busy today

[LB145]

Hi,

 

Ok, in places you may think I've been harsh - but no where near as harsh as the other side would be.

 

I would seriously think about this defence and why you are writing some bits of it.

 

check out s.78.6 it could be a very straightforward saviour, as it will at least buy you time (as they can rectify their default with a bit of effort and paperwork) you will still then have the chance to amend your defence and take the agreement apart piece by piece.

 

If there are mistakes of mine above then I apologise - I'm rather busy today

 

Thank youf ro looking - I think I have read too much for over a week now - panicking and everything has become a jumble - will rethink!

[gh2008]

There is nothing stopping you asking the court for more time especially as a LiP and as the claimant submitted the docs and didn't give permission as asked for the defence extension.

 

I would be *very* surprised if they didn't allow it.

What you do *not* want to do though is let the deadline pass without doing anything - they do not like that......

[emandcole]

Doesn't the claimant have to make an application to introduce certain evidence under the Civil Evidence Act? Only had a quick read through but if any reconstituted/true copy agreement instead of the original is being relied on they need to introduce it accordingly.

 

LB, do you have a complete statement history from the claimant so you can audit the account? If they haven't provided that how can you determine if they are asking for the correct amount? It is a legal requirement for them to hold at least 6 years and in some cases up to 7 years depending on how the year end fell. Do the T&C's clearly list default charges?

 

If the account is subject to considerable penalty costs the default notice will have an incorrect remedial amount,

 

(unless they reserved the contractual right to charge this which some old agreements failed to do. Also, anything in excess of £12 a shot you have a good argument against on the grounds of unfairness, perhaps use the Unfair Relationship argument and insist they prove that X amount was proportional to their loss as a result of your account breach),

 

which technically renders it invalid. I would pursue the invalid default (due to incorrect amount as the time allowed is fine) and then rely on the termination of the account and go for unlawful rescission.

 

Sure there are other issues to expand on as well but if you can strengthen and evidence the invalid default and unlawful rescission you will be in a far stronger position to bargain and depending on the amounts they are claiming it can turn the table completely.

 

Apologies to all if I've missed something written or picked up on earlier .

[LB145]

Just rang the courts - confirmed defence has to be filed on 14th Feb not 10th! Phew!!!

 

I sent SAR to MBNA last year and had info up to July - have another ready to post today for updated information - Reston's said that they do not give the Comms Log that has to come from MBNA - also their letter states no Termination applicable.

 

The Application Form - which is being referred as the Agreement - has badly photocopied reverse does not match the front with badly photocopied Financail & Related Conditions in a thin column on the right . It also has a box on the front next to signature stating that "Before you sign this Agreement you should read Condition 11 in the Terms & Conditions provided."

 

The copy of the Original Terms and Conditions" sent by Reston's is unreadable

 

Since CCA was never supplied - charges have been added, plus when these went on, overlimit charges despite being in serious despute - was about £5k - Amount being claimed £7+K plus court fees and solictor costs

 

 

Am getting conflicting views on the DN whether it is correct or not - the amount on the Default Notice is different to the claim - added interest frm the date of DN?

 

Sorry if I am repeating!

[angel_1]

Hiya LB145

 

wishing you lots of luck and courage to continue, just found your thread will have a good read

 

take care laters angel x

[supasnooper]

If the T&C 's are illegible then quote Carey v HSBC which stated that the Agreement should be clearly legible.

 

Surprisingly, Restons are correct - You need to send another SAR letter to MBNA for the Comms Log.

 

The DN does appear to be effective - MBNA have given more than the required time allowed.

However, if you can prove that the amount on the DN is wrong or contains unfair or penalty charges then it would be ineeffective

[emandcole]

Just rang the courts - confirmed defence has to be filed on 14th Feb not 10th! Phew!!!

 

I sent SAR to MBNA last year and had info up to July - have another ready to post today for updated information - Reston's said that they do not give the Comms Log that has to come from MBNA - also their letter states no Termination applicable.

Looking at the default the Default Notice also passes as a Termination Letter, however, this might be open to interpretation as the default only stated they might and not would terminate the agreement by asking for the full balance.

 

A lesser point sure but given the fact they have not provided an official notice of termination you might be able to gain a brownie point as their default notice was subject to interpretation and not concise in nature eg - if you don't remedy we will definitely terminate the account. As such, it might be reasonable for you to expect that they would issue a formal termination notice to indicate the fact that they had indeed chosen that option, as listed in the original default. Need to remember that this process must be clear to the debtor and not open to uncertainty.

 

The Application Form - which is being referred as the Agreement - has badly photocopied reverse does not match the front with badly photocopied Financail & Related Conditions in a thin column on the right . It also has a box on the front next to signature stating that "Before you sign this Agreement you should read Condition 11 in the Terms & Conditions provided."

Legibility is a big issue. If they argue otherwise invite their representative to read the Terms & Conditions aloud in court to show you are not being unreasonable. If the signature document refers to a condition outside of the document that hasn't been supplied or is illegible this will make their claim a great deal harder. Why important? Condition 11 could specify that you have to pay £1000 month if you don't spend more than £5000 a year on the card. Not a great example but you get the point. Who knows what condition 11 actually is? If it's been referred to in the signature document it needs to be present and legible.

 

The copy of the Original Terms and Conditions" sent by Reston's is unreadable

 

As such you never agreed to the large penalty sums that were added to the account. Or/And...if these original T&C's are unclear how can the claimant rightfully insist that the charges that were applied were ever agreed? Were you even aware of these charges? Did the OC even reserve the contractual right to apply such costs to the account? Doubt is good, the more you can throw onto the claim the less chance they have.

 

Since CCA was never supplied - charges have been added, plus when these went on, overlimit charges despite being in serious despute - was about £5k - Amount being claimed £7+K plus court fees and solictor costs

Again, is there ary contractual right for them to add these charges, did you agree to this? Does their paperwork support this so called 'right'?

 

Am getting conflicting views on the DN whether it is correct or not - the amount on the Default Notice is different to the claim - added interest frm the date of DN?

The default is good enough for a court to accept, they'll ignore minor discrepencies such as font type etc. What is important is the time they gave you to provide remedy (yours is fine and specific) but clearly the amount they asked for on the default is subject to argument. I would attack the validity of the default notice and try to demonstrate that the value asked for is completely innacurate.

 

Due to this inaccuracy you were unable to meet the demand as it was both unreasonable and unfair. Remember, the OFT effectively forced creditors (running credit) to drop charges to £12 as anything above that would be examined, thats why they all went to this amount literally overnight. The OFT didn't ever state this was a fair or correct amount as many creditors insist, merely that anything of this amount or below would not be reviewed.

 

As a result I'm sure you have a catalogue of charges in excess of £12 a go. Invite the claimant to itemise the actual cost to demonstrate that charges of up to £35 were proportional for the loss/cost they incurred. Due to competition sensitivity and other such nonsense the creditor will not divulge such information and your argument that these figures are unfair should stand.

 

Default amount therefore incorrect. Creditor terminated (which you then accepted by conduct (not paying any more) and you sent a letter confirming your acceptance, which they might not have got ). Perhaps worth amending to defend and counter claim for unlawful rescission and damages. That, along with the other points you have could well be enough to make them think again.

 

Sorry if I am repeating!

 

My thoughts above.

[LB145]

Thank you SS and Emandcole -much appreciated will commence attack again.

[LB145]

If the T&C 's are illegible then quote Carey v HSBC which stated that the Agreement should be clearly legible.

 

Surprisingly, Restons are correct - You need to send another SAR letter to MBNA for the Comms Log. sent today

 

The DN does appear to be effective - MBNA have given more than the required time allowed.

However, if you can prove that the amount on the DN is wrong or contains unfair or penalty charges then it would be ineeffective

-As no CCA was sent account went to serious dispute Mayish and stopped payments until compliance -huge interest plus default charge made over limit - so £12.00 default for non payment plus £12.00 plus for over limit does the final amount on the DN have to be the amount minus the default charges or are they still included? Am I on the right track?

[LB145]

Have been absorbing all night - am I getting there? Is it too long and have I missed anything out?

 

In the xxxxxxxx County Court

Claim number

 

 

Between

xxxxxxxxxxx- Claimant

and

 

- Defendant

 

 

Defence

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

2. At the point where my defence was required I am not in possession of all requested documents from the claimant, which were vital to my ability to defend this action and places me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

3. On xx/xx/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit L1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

4. The claimant failed to supply all the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has supplied some of the requested information (Attached Marked Exhibits L2) , and now after consideration of the documents which have been supplied I can now make a fully particularized defence to the claimants Particulars

5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)for the reasons set out below in this defence and as a consequence it is unenforceable

7. 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

8. 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)

9. 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

10. 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 but in a separate document headed Terms Conditions. There is no apparent link between the Terms & Conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

11. Further more The Application Form - which is being referred as the Agreement - has been badly photocopied and the reverse document headed “Financial & Related Conditions” is eligible and does not match the front therefore this adds to my belief that the agreement and the reverse are indeed a separate documents

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 13, 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. 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).

 

16. 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

17. With regards to the Authority cited in point 16, 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."

18. 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

19. 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 supplied by the claimant (marked Exhibit R1) unenforceable.

 

20. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

23. 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.

24. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 12,16 and 17 of this defence. 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

 

25. 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.

26. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, 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 in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

Statement of Truth

 

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

 

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

Date

Edited February 10, 2010 by LB145
Forgot HTML tags again

[emandcole]

Hi LB, I'll have a quick look at this tomorrow and see if I can add anything.

[LB145]

Hi LB, I'll have a quick look at this tomorrow and see if I can add anything.

 

 

Much appeciated - now need my bed! - I think the main defence is that it is an Application Form and not a Signed CCA

[citizenB]

Have been absorbing all night - am I getting there? Is it too long and have I missed anything out?

 

In the xxxxxxxx County Court

Claim number

 

 

Between

xxxxxxxxxxx- Claimant

and

 

- Defendant

 

 

Defence

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. At the point where my defence was required I am not in possession of all requested documents from the claimant, which were vital to my ability to defend this action and places me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

 

3. On xx/xx/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit L1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

4. The claimant failed to supply all the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has supplied some of the requested information (Attached Marked Exhibits L2) , and now after consideration of the documents which have been supplied I can now make a fully particularized defence to the claimants Particulars

 

5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

 

6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)for the reasons set out below in this defence and as a consequence it is unenforceable

 

7. 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

 

8. 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)

 

9. 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

 

10. 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 but in a separate document headed Terms Conditions. There is no apparent link between the Terms & Conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

11. Further more The Application Form - which is being referred as the Agreement - has been badly photocopied and the reverse document headed “Financial & Related Conditions” is illegible and does not match the front therefore this adds to my belief that the agreement and the reverse are indeed a separate documents.

 

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 13, 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. 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).

 

16. 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

 

17. With regards to the Authority cited in point 16, 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."

 

18. 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

 

19. 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 supplied by the claimant (marked Exhibit R1) unenforceable.

 

20. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

You seem to be missing points 21 and 22.. make sure your numbers run correctly.

 

23. 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.

 

24. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 12,16 and 17 of this defence. 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

 

25. 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.

 

26. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, 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 in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

Statement of Truth

 

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

 

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

Date

 

just my tuppence worth. There was a spelling error and 2 points seem to be missing or you need to renumber your points.

[LB145]

just my tuppence worth. There was a spelling error and 2 points seem to be missing or you need to renumber your points.

 

 

I will renumber and check spelling - do I need to emphasise any of the other points like the default charges or if needed add that in fuller defence later when I received the updated SAR from MBNA

 

Illegible was the one word I spell checked best to rely on the English disctionary and not the Spellchecker!

Also do I need to add that I am a LiP - (or have I - must re-read (note to self!)) . Will amed and put up - really need to get this submitted but do not want to make silly mistakes that can lead to big falls later!

[LB145]

20. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561

 

Is this correct to go in - with regard to post #89?

[emandcole]

Yes, put that in as it's a main argument. Explain briefly why the default is invalid, the amount is incorrect. It will then be for the claimant to counter that by providing you and the court evidence to show how your point is/isn't correct. I believe if the court accepts the default is invalid it is a complete defence. As for the amount the default is out by, the higher the better as a small amount could be classed as de minimus and ignored. Ideally you need them to have applied a lot of charges to the account, all the better if they cannot show they reserved the right to apply those charges in an original set of terms and conditions.

 

If you have any way of assessing those charges yourself (full statement history) then you can ascertain what percentage of the claim are penal in nature. There is a case where a claim was thrown out because the claimant had applied so many charges the percentage of those was around 38% of the total claim if I remember rightly. The closer you can get to that the better but I doubt you'll hit those kind of percentages. Add this into your default section:

 

The 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 once terminated on leads to an unlawful rescission of contract giving me right to seek damages for injury to credit (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

Edited February 11, 2010 by emandcole

[LB145]

In the xxxxxxxx County Court

Claim number

 

 

Between

xxxxxxxxxxx- Claimant

and

 

- Defendant

 

 

Defence

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

2. At the point where my defence was required I am not in possession of all requested documents from the claimant, which were vital to my ability to defend this action and places me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

3. On xx/xx/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit L1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

4. The claimant failed to supply all the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has supplied some of the requested information (Attached Marked Exhibits L2) , and now after consideration of the documents which have been supplied I can now make a fully particularized defence to the claimants Particulars

5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

6. The credit agreement (Attached Marked Exhibits L3) supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)for the reasons set out below in this defence and as a consequence it is unenforceable

7. 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

8. 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)

9. 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

10. 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 but in a separate document headed Terms Conditions. There is no apparent link between the Terms & Conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

11. Further more The Application Form - which is being referred as the Agreement (Attached Marked Exhibits L3) - has been badly photocopied and the reverse document headed “Financial & Related Conditions” is eligible and does not match the front therefore this adds to my belief that the agreement and the reverse are indeed a separate documents

11.1 The copy of The Application Form has four corners outlined in black, the reverse document is larger than the front and if it were to be the same size then the “Financial & Related Conditions” on the right hand side of the document would be even more eligible than it currently shows.

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 13, 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. 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).

 

16. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- First County Trust [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

17. With regards to the Authority cited in point 16, 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."

18. 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

19. 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 supplied by the claimant (marked Exhibit L3) unenforceable.

20. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

20.1 The 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 once terminated on leads to an unlawful rescission of contract giving me right to seek damages for injury to credit (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

21. Prior to these proceedings in the build up to this action, I had raised a formal dispute with MBNA Europe Bank Limited on the xx/xx/2009 I wrote to MBNA Europe Bank Limited requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974. This request was received on the xx/xx/2009.

21.1 On xx/xx/2009 the claimant supplied a copy of an application form, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. The reverse of this application form does not belong on the front and is a reconstruction. Accordingly I wrote to the claimant setting out the issues

22. 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.

23. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 12,16 and 17 of this defence. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

24. 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.

25. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, 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 in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

Statement of Truth

 

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

 

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

Date

 

Have made some amendments - is this now ready to submit

 

Also when is the witness statement required? When defence is submitted?

[bazaar]

i would change point 10 to reflect it is an application form and such falls foul, it is not an agreement,

[emandcole]

Yeah. I'm certain that an application cannot both be an application and an agreement, it is either or.

[bazaar]

Also, forgive me if I'm wrong, but there doesnt appear to be any reference to the amount they are claiming being wrong, I know youve put in strict proof of amount they claim, but what have you done to find out for yourself? If youve requested statements, then I would put that fact in, to show the Judge that there may be a discrepency.

If youve got statements, then bang on about the sums charged not being on the original agreement, ( Because they dont have one). Or you cannot recall them being there.

Its up to them to prove this exists and the amounts claimed are correct, you will just nudge the Judge in that direction.