Urgent!! Unenforceable Agreement Court Action

[lornarobins]

UNENFORCECABLE CREDIT AGREEMENT - COURT ACTION

Hi there - I really need your help urgently to end an ongoing dispute between myself and Link Financial which began in 2008 when I requested a copy of the credit agreement for a student Barclaycard, opened 2002, sold to Link by Barclay card in 2004.

I've recently been issued with a claim at Northampton County court from Link Financial - the twist is I took them to court a few months ago and lost (unprepared skeleton argument, never been to court, unorganized in conveying points).

Its quite a long story so I'll be as brief as I can:

 

1) Opened student Barclaycard Account in 2002 (credit limit £300).

Default registered by original creditor September 2004 for £748 (was never informed by Barclaycard that a default was registered – even under a SAR and numerous letters they have not provided me with the original default notice).

 

2) Debt sold to Link Financial 16th December 2004 - another identical default registered by Link upon purchase.

BOTH DEFAULTS remained on my credit report for 4 years unnoticed until I requested a copy o my credit report after visiting the CAG.

 

3) Requested Credit agreement, terms and conditions, statements, default notice, deed of assignment and notification letter of the sale of the debt from BOTH the original creditor (BarclayCard) & Link Financial (DCA).

Also sent SAR's & S.10 notices to both parties – as well has vigorously pursuing Credit Reference agencies on a weekly basis. (Equifax, Experian & call Credit) to suppress the defaults on my credit report until this info had been provided.

Call Credit & Equifax agreed to suppress the data, Lee Hancock from Experian continued to communicate pompous waffle for months without suppressing the info!

 

 

4) Original creditor removed their default entries immediately. DCA refused remove their entries & sent me a copy of their definition of a credit agreement (PLEASE SEE ATTACHED)

 

 

5) I begin a claim against Link Financial seeking an enforcement order under section S.10, S14.1 and S14.3 of the Data Protection Act 1998 – for the removal of all incorrect data and cease processing under S.10.

 

6) Lost case in court as I was VERY nervous, I had NEVER been in a court before and as a result I was ill prepared when making points and backing it up with actual legislation -

Although I did make some extremely valid points & I believe the judge did try to help by offering adjournment to gather my critical points and allow Link Financial to actual provide a letter of default and a credit agreement, and all statement of accounts with attached terms and conditions at the time the account was opened.

 

 

Link Financial could not provide the terms and conditions attached the application form at the time of opening, nor could they provide notice of default letter! The judge was extremely hard on them for this fact and they could not defend this point.

 

 

7) DECLINED the adjournment & loss - my case was dismissed.

 

 

8) 4 weeks later I received a copy of the so called terms and conditions from Link Financial - basically unattached and could relate to any credit agreement.

 

 

9) 3 months later I receive a court claim on the 23rd December from Link Financial for the outstanding amount plus interest and court fees!

 

 

This is the story in summary - my problem is can I win this time??? - What is my defence to their claim (especially considering I lost with my own claim).

 

This debt is nearly at its end, its been on my credit report for 5+ years and is due for deletion sept this year!!!

 

 

MY QUESTIONS ARE:

 

1) what defence can I use on my defence form - How can I word it??

I've been looking at the thread Consumer Credit Agreements - a guide to enforceability and I'm sure the credit agreement is unenforceable HOWEVER could the courts still enforce it???

 

 

I’m thinking of using Section 127(3) of the Consumer credit Act.

This section says that an agreement that is not properly executed can only be enforced if it consists of a single document:

a) signed by the debtor, and

b) has the prescribed terms

 

2) Is there any other legislation or angles I can use to defend myself with??

 

 

3) What if any CPR requests can I send out before the trial? – Could I ask for the TRUE copy of the credit agreement and letter of default??

 

4) Is there any way I can stall proceedings so the debt will actually be too old when it comes to court?? Or use the length of time already registered as a default as my defence??

 

I'm feeling ok about the whole thing and believe I will be more organized and assertive in court this time - BUT what if they get judgment I could now have a CCJ for another 6 years after already having a default it on my report for 5 1/2 years!!!

 

There have also been threats of a charging order from these people as I am a homeowner.

 

What can I do?? I need some guidance PLEASE HELP! Any advice, legislation, Defence wording ANYTHING would be very very much appreciated.

Edited January 21, 2010 by lornarobins
delete personal info in attachments

[scottybhoy]

Holy toly, you have big bolls and well done for taking a stance against these Cretins who think that they can bully you into paying for a possibly unenforceable debt!

 

I have recently had all action ceased against a £6800 loan due to the company faffing the agreement. My post is here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/230453-first-response-finance-enforceable.html#post2552835

 

Anyway to hopefully help you, you should maybe compare my agreement to yours as much as you can and I can send you a letter with the points raised which will hopefully help you (they are made against actual legislative points and have managed to beat this so called companies Legal Team as well).

 

I apologise that I cannot put this file on here at the moment because of various issues it may cause, but I am happy to Private Message it to you.

 

Let me know if that is OK and good luck with your case. IF you need help with some points I will try if you can email me your agreement (take out personal info though).

 

I am not a lawyer nor offer legal advice, I just offer my opinion based on experiences that I have had and it is up to you if you take any of my advice. (sorry but need to keep myself right here).

 

Scotty

[scottybhoy]

sorry, forgot to subscribe to this link. all done. damn quick replies!

[angry cat]

Looks like many DCA's are chasing student credit card accounts now!

 

Hopefully, the following thread may be of assistance to you:

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Barclays should have issued you with a default notice under s87 CCA.

 

Did Barclays terminated the agreement?

[vjohn82]

I can probably help with this as I have had a Barclaycard student application form recently claimed for... the case was discontinued by the "new owner" two days ago. So I some idea of preparing a defence to these claims.

 

3 Q's to kick off:

 

1 - When did you last make a payment?

 

2 - What does it say on the POC?

 

3 - Have you got a NoA?

[lornarobins]

Hi there – Thanks so much guys for the helpful and supportive response - I’ve been reading the threads suggested like mad, sieving for information – found some really helpful info.

Scotty you’re a star - £6800 – that a real win, I’m inspired!

Yes please do PM me with your letter with points raised, this will help me with my direction.

 

In response to Angry cats question:

I was never sent a default notice or any other notices or terminations by either Barclaycard or Link Financial. These documents were requested by myself under subject access requests to both parties – in fact each and every time I wrote to Link under the CCA and various other reminder letters, court action letters etc (at least 15+).

In response to vjohn82 questions:

1) Last made payment on: 19th December 2003!

(However Link & Barclaycard can only provide me with statements from Jan 2003 – sept 2004.

The account was opened in 2002 and the first statement shows a balance bought forward #367!! I’ve also noticed that the account number is not the same on all the statements – what can this mean)?

 

2) POC states:

The Claimant claims the whole of the outstanding balance due and payable under an agreement and/or associated agreements made with the defendant in writing and dated 07/05/2002 and assigned to the claimant.

The agreements and/or associated agreements are regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment as required by the agreement and/or associated agreements and to comply with a default notice or notices served by the Claimant and/or Assinor.

And the claimant claims:

1) #840.13

2) Interest pursuant to section 69 County Court Act (1984) at a rate of 8.00% per annum from 16/12/04 to 18/12/09 of #336.60 and thereafter at a daily rate of #0.180 to date of judgment or sooner payment.

3) What is NoA???

Any help that you can give me would again be really appreciated vjohn82 – I need to be fully prepared for everything they throw at me!

I did bring the fact that I had never received any default notices from Link or the original creditor to the judges attention at the previous court hearing. Their defence was so pathetic that the judge became angry and they lost their creditability for awhile – They had bought along a screen print out of their database simply showing my name and the date the letter was supposedly sent, to make matters worse they also bought along a witness who’s only purpose was to verify that the document had been printed by herself that morning. It was really quite funny.

I definitely feel that I lost the overall case because I was unprepared & did not have a methodical a legislative based argument. – This time I have to prove them wrong – I was soooooo disappointed – but I guess I now have another chance to win what has to be the final battle in this saga.

Having read Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED - there are some really excellent tips and points for thought in this thread and I will use this as some guidance.

 

My defence is due in on Monday so any help would be very much appreciated – I have found a defence on site that is similar to my situation and I will work on this tonight and post up later or first thing tomorrow.

 

As Link Have failed to reply to my CPR request, do you think I should send another CPR letter as a second reminder – or see if the judge orders them to provide the info as will requested in my defence?? Another problem is I did not send it recorded delivery – very stupid I know! Should I send again??

 

I’d also like to ask is it possible for DCA’s to get a CCJ at this late stage – taking into consideration I’ve had a default on my account for 5+ years and which is due for removal in Sept 2010??

This would mean I would have another 6 years with this on my credit report – is this right???

[lornarobins]

Here is the defence that I believe I could/will use - do you guys think this is sufficient at this stage??

Defence

1. 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.

 

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

 

3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

4. The defendant requires sight of the deed of assignment of the alleged debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears these are assigned debts. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - 1956 2 All ER 169

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

6. Further to the case, on 24/12/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreements referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

7. Since the Claimant has failed to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimant’s allegations at this stage.

 

8. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested. The claimant is ignoring the overriding objective. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me.

 

9. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

10. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

 

11. Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

12. The claimant is therefore put to strict proof that such a compliant document exists

 

13. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

14. Notwithstanding point 12, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

15. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

16. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974[/font]

17. Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

19. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

Edited January 21, 2010 by lornarobins

[scottybhoy]

hi lorna, will get letter emailed to you asap, sorry for the delay.

[pt2537]

no that defence is not sufficient and will fail in my opinion