Debenhams Store Card-defence - **SUCCESS - CLAIM STRUCK OUT**

[emandcole]

If the claimant or the court want to see any documents they will ask for them, however given the nature of the claim which is a simple one there is unlikely to be anything they will need from you. The burden of proof is of course on the claimant and not you, this is why it is better/easier to defend than to attack. You could however ring the court to check that you haven't been sent anything that hasn't arrived.

 

The claimant 'should' have all the documentation it needs in support of their claim, as you will have already found the priority is for you as the defendant to accrue all you need so that a defence can be constructed, something you've already done. So, when you go to court the documentation you'll need is likely to be copies of any case law you intend to rely on (wherever you've mentioned a case in your defence) so that the judge can examine it if needed.

 

You should also have copies of any regulation or statute you've relied on, Consumer Credit Act 1974 or OFT Debt Collection Guidelines for example so that anything you've relied upon can be quickly checked if it is attacked by the claimant perhaps.

 

Pleased to see the court has ordered the originals to be brought to the hearing, if they fail to bring these originals do not let them get away with excuses...the court has ordered they are to be present and if they haven't complied you should insist that anything they plan to use that is therefore a 'copy' should be introduced correctly as hearsay evidence under the Documents in Court rules allowing you to question the credibility of these copies.

 

More on that if you need it but hopefully they will comply with the court and bring the originals. Doubt they have them though so we'll see how they intend to get round this.

 

If an adjournment is needed then I'd politely ask for one given the fact that its them and not you who haven't complied with court orders as you were expecting to see these originals and will need to revise your defence if they haven't complied. As its small track you needn't worry about the costs of this and as the claimant would be at fault you can ask for this to be taken into consideration once all of this is done with when you have hopefully won.

 

Also very important to ensure the claimant gets a copy of your costs before the hearing, a week is fine, so that if you were to win you can claim these costs back.

 

Your time at the litigants in person rate of £9.25 is capped 2/3 of what a solicitor would charge...an example being that if the court decided this should have taken 12 hours of prep at the solicitors hourly rate then you can only recover up to the cost of 8 hours @ £9.25. Disbursements however are not subject to this cap, in theory therefore your disbursements can be higher than those of a solicitor but whatever you claim for make sure it is reasonable. So, when you do your costs seperate the time from the disbursements and list the details accordingly.

 

Make sure you take 3 copies of everything to the court, 1 for you, and two spares in case the claimant or the court have 'lost' their copies. This stops them from nabbing your set and leaving you to work from memory. Make sure you're well organised and ensure you know your arguments inside out.

 

Finally, had a look at your DN and the application you have but they're too small to view. Do you have a better set to look at? Although your defence is in ther might be a few 'killer' bits in the form that you could add given the fact the hearing is still some time away.

Edited August 19, 2010 by emandcole

[MONTY]

Wow! Emandcole - Thank you,

 

I am going to PM you the links to the PoC, NoA and alleged DN.

 

The NoA is interesting, as after informing me of the NoA there is another section (almost looks like two leters have been photocopied onto one page) which clearly states that on the same date of the NoA a claim has been issued.

 

I am studying your comments above and will start compiling all my documents. I suspect you are right, they will strugle to provide original documents. I wonder if the Judge suspects the same, hence the detail in the order?

 

I will come to questions re costs later in the thread, as I want to focus in the first instance on getting all my documents together in the correct order (I think I have everything already, including relevant case law) which I will double check against my chronology. However, is there a correct format for presenting my costs and is £35.00 per letter unreasonable?

 

Monty

[foolishgirl]

Hi Monty

 

Dropping in as requested by CB. My comment FWIW:

 

EMC has given you some great info on court procedures etc. there but IMO you may be getting a little ahead of yourself here unless you are hoping that Cohens will not pay the fee & you will make application for the claim to be struck out:

 

' I want to focus in the first instance on getting all my documents together in the correct order (I think I have everything already, including relevant case law) which I will double check against my chronology.'

 

You would do well to read Debbsy's thread here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?228765-Howard-Cohen-GE-Money-discontinue-claim&highlight=

 

It is almost identical to your own.

 

I can't read your attachments, but I note that this was a Debenhams Store card. As such it would have completely different T&Cs to a credit card which I assume they changed it for at some time. If that is the case, they need to produce a Credit card agreement signed by you, not a Debenhams Store card agreement - or in this case an applic. form!!

 

A letter along the lines of debbsy's may see this claim off before the hearing & would give you brownie points with the DJ as you would be seen as having made reasonable attempts to settle the issue with the Claimant (& therefore more justification for your costs claim - see below)

 

If you have to go to a hearing, although you haven't been ordered to, I would suggest compiling a WS along with copies of the relevant docs to send to the court & the claimant 7 days prior to the hearing. That way it makes it clear to both DJ & Cohens that they have no case.

 

To answer some of your other points:

 

However, is there a correct format for presenting my costs and is £35.00 per letter unreasonable?

 

You can claim £9.25/hour LIP rate to type your letter, then claim your copying (paper, ink, time) & postage on top of that.

BTW you can also claim the same hourly rate for research

See S4 here for guidance on how to set it out:

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm

 

I have just compared the latest copy of the alleged Notice of Assignment (NoA) with the one I received at the begining of February. The latest one has been significantly altered.

 

This could be brought out in your WS

 

 

Of note the Notice of Assignment is dated Friday 29th January 2010, the claim was submitted on Monday 1st February 2010. There is no way that I could I received the notice of assignment prior to submission of their claim. Also, I believe it is incumbent on the claimant to try and resolve the situation prior to issuing a claim through the courts.

 

They are at liberty to issue their claim as soon as they wish to after the assignment; however you should have received an LBA before the issue of the claim under the Pre-Action Protocols. Again, could be brought out in the WS & would also give added ammo for your costs submission as they could object to it on the grounds that it is SC not Fast Track. However you are entitled to claim actual costs under CPR48.6, particularly if any of the provisions of CPR44.3 apply eg 5b (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part44.htm)

[citizenB]

Thanks to all those who responded to the S.O.S

 

[MONTY]

Thank you you lovely people!

 

I am going to take time over the weekend to study all the advice given and links provided.

 

For clarity, I want them to go to court - I want my day!

 

M

[hammyhound]

Have fun Monty, I did and got over £500 costs. As you know CL Finance did not pay the hearing fee so the claim was struck out - so you might not get that day in court after wall but good luck.

 

HH

[MONTY]

Hi Monty

 

Dropping in as requested by CB. My comment FWIW:

 

EMC has given you some great info on court procedures etc. there but IMO you may be getting a little ahead of yourself here unless you are hoping that Cohens will not pay the fee & you will make application for the claim to be struck out:

 

 

 

You would do well to read Debbsy's thread here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?228765-Howard-Cohen-GE-Money-discontinue-claim&highlight=

 

It is almost identical to your own.

 

I can't read your attachments, but I note that this was a Debenhams Store card. As such it would have completely different T&Cs to a credit card which I assume they changed it for at some time. If that is the case, they need to produce a Credit card agreement signed by you, not a Debenhams Store card agreement - or in this case an applic. form!!

 

A letter along the lines of debbsy's may see this claim off before the hearing & would give you brownie points with the DJ as you would be seen as having made reasonable attempts to settle the issue with the Claimant (& therefore more justification for your costs claim - see below)

 

If you have to go to a hearing, although you haven't been ordered to, I would suggest compiling a WS along with copies of the relevant docs to send to the court & the claimant 7 days prior to the hearing. That way it makes it clear to both DJ & Cohens that they have no case.

 

To answer some of your other points:

 

 

 

You can claim £9.25/hour LIP rate to type your letter, then claim your copying (paper, ink, time) & postage on top of that.

BTW you can also claim the same hourly rate for research

See S4 here for guidance on how to set it out:

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm

 

 

 

This could be brought out in your WS

 

 

 

 

They are at liberty to issue their claim as soon as they wish to after the assignment; however you should have received an LBA before the issue of the claim under the Pre-Action Protocols. Again, could be brought out in the WS & would also give added ammo for your costs submission as they could object to it on the grounds that it is SC not Fast Track. However you are entitled to claim actual costs under CPR48.6, particularly if any of the provisions of CPR44.3 apply eg 5b (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part44.htm)

 

Thanks for this I am linking with Debsssy for a copy of the letter you refer to.

 

I can confirm the Court has ordered each party to deliver copies of all documents no later than fourteen days before the hearing.

 

I can also confirm no LBA was sent and that this is reflected in the NoA (see post 77 above).

 

I have PM'd 'Emandcole' with links to the PoC, NoA and DN in the hope of revealing yet more errors

 

Monty

[emandcole]

Hi Monty, just read the above and saw you'd PM'd me? Not got anything through (I believe) so if you have those links let me know

[MONTY]

Hi Monty, just read the above and saw you'd PM'd me? Not got anything through (I believe) so if you have those links let me know

 

Hi Emandcole,

 

You need to clear some PM's from your store. I am getting an error message that says you are full

 

Monty

[Rom]

Hi, sorry if i'm jumping in, new at all this. I have been issued a claim by HC, I have sent them a letter for CPR 31.14, but now am unsure as to how to sort out defence and what to look for, you guys seem to have had some succes, any help appreciated.

 

Hi, sorry if i'm jumping in, new at all this. I have been issued a claim by HC, I have sent them a letter for CPR 31.14, but now am unsure as to how to sort out defence and what to look for, you guys seem to have had some succes, any help appreciated

Edited August 24, 2010 by citizenB
merged duplicated posts

[foolishgirl]

Have you got your own thread going yet on this one Rom; if not start one with as much detail as poss (but do not post your personal details) & post the link here & you'll get the help you're asking for.

[Rom]

Have you got your own thread going yet on this one Rom; if not start one with as much detail as poss (but do not post your personal details) & post the link here & you'll get the help you're asking for.

 

Thanks for the tip.

 

I have started my own thread and wasn't sure how to get knowledgable people to have a look.

 

My thread is http://www.consumeractiongroup.co.uk/forum/showthread.php?274330-Urgent-help-needed-with-County-court-defence&highlight=

[Rom]

Hi Guys, sorry to jump in, I think I am in similar position, can anybody help?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?274330-Urgent-help-needed-with-County-court-defence&p=3100632

[MONTY]

If Emandcole is reading this can you please make some room in your PM store and I will send you the links to relevant documents?

 

Monty

[emandcole]

Seems to fill up quickly nowadays . Should be good now.

[MONTY]

Seems to fill up quickly nowadays . Should be good now.

 

Thank you Emandcole,

 

Hopefully you have now received the links.

 

M

[emandcole]

Yep, all received. Ok, you should be able to defend this, classic Cohens relying on ignorance. I haven't seen any T&C's for this account (might have missed them in an earluer post) however you should check to see that they are indeed inception terms and most importantly that:

 

These original terms provided that the creditor could vary them at a later point.

 

That there is a clear schedule of charges in the event of debtor default such as late payments.

 

Perhaps you could check this for me and let me know what you find?

 

The 'credit Agreement' is a pre-contractual application form, importantly the page is headed as such as well. For this you can use section 56 of the CCA 1974 that states:

 

(3) An agreement is void if, and to the extent that, it purports in relation to an actual or prospective regulated agreement—

(a) to provide that a person acting as, or on behalf of, a negotiator is to be treated as the agent of the debtor or hirer, or

(b) to relieve a person from liability for acts or omissions of any person acting as, or on behalf of, a negotiator.

 

This is therefore an application first, an agreement second and should be attacked for this.

 

The term “Credit Agreement” is incorrect. This application form should actually be for a “Credit Card Agreement” which is a completely different form of credit with separate rules governing the exact layout and wording of terms.

 

 

 

The Consumer Credit (Agreements) Regulations 1983 state:

 

SCHEDULE 1

 

 

 

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

 

Regulation 2(1)

 

 

 

TYPE OF AGREEMENT INFORMATION

 

 

 

Nature of agreement

 

 

 

All types

 

 

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words—

 

 

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

 

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

 

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

 

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974"

 

 

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974". The defendant would therefore argue that the agreement type has clearly been mis-stated as Credit Card Agreement is clearly applicable for running-credit agreements.

 

As the claimant is technically relying on an inaccurate credit agreement heading the claimant must also accept that a “Credit Agreement” must contain the following terminology to conform to form and content regulation. Once again with reference to The Consumer Credit (Agreements) Regulations 1983 a “Credit Agreement” must amongst other details and without exception contain:

 

The nature of the agreement (Covered above)

 

The term “Credit Limit” and not as this application shows, “Credit Value”.

 

The Total Amount Payable

 

The Total Charge for Credit

 

Clearly a fixed sum Credit Agreement is very different to running-account credit. If the claimant insists they have a valid “Credit Agreement” these terms must be included. These terms are not to be found anywhere on the pre-contractual application rendering the claim irredeemably unenforceable.

 

With this in mind the defendant refers to an extract from 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 Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

21. 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 s61 that all the terms should be in a single document, and backed up by the provisions of s127(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.

 

If the claimant goes down the 'you had it you pay for it' route then refer to this part of Wilson and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

That should see them off.

 

Cohens refer to an assignment that has supposedly taken place. Remember, it is not the section 136 notice that creates an actual asignment, anyone can send a letter stating they own a debt. You need to get sight of the actual Deed of Assignment, just like mortgage papers to a property they signify actual ownership of something. You have a right to inspect this deed so use Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824 to enforce that right.

 

If the claimant protests about you seeing that they paid £50 for a 2 grand debt then make sure as an absolute minimum that the deed is still provided and that the court examines it on your behalf, also make sure a copy is taken of this supposed deed to cover your back in the event of getting a judge who is ignorant of the CCA or basically bias towards the claimant.

 

As for the application itself use the following if they only have one copy.

 

 

The Consumer Credit Act 1974 states that:

 

‘In the event that a creditor does not sign an agreement at the same time as (or before) the debtor, the Act stipulates that a copy of the unexecuted agreement (signed by only the debtor) must be provided to the debtor immediately. A further executed copy (signed by both parties) must then be sent to the debtor within 7 days of the making of the agreement’.

 

So, you should actually have two copies of 'an agreement', one unexecuted by the creditor and one executed by the creditor with their signature. It is unlikely that a shop worker in Debenhams was empowered with the rights of the creditor to sign and execute any agreement. Put the claimant to strict proof that this was done and ask to see the 'missing copy' of the unexecuted agreement.

 

Next thing to attack is the fact that they've produced what amounts to a photocopy of an agreement that is around 12 years old. Where is the original?

 

Under CPR Practice Direction 16 Para. 7.3:

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

 

The defendant therefore expects the claimant to produce the original document during any hearing so that it can be inspected.

 

If the claimant is unable to produce the original and intends to introduce hearsay evidence and reproductions of something the claimant states is ‘a true copy’ the claimant should make the appropriate application in line with the Civil Evidence Act. The defendant will require sight of such an application.

 

The defendant intends, with the permission of the court, to question the accuracy and history of any hearsay evidence in order to ascertain the nature of this supposed true copy. The defendant would expect the claimant to be able to fully document all record keeping processes and produce the evidence to support their claim that it is a true copy, in line with all responsible record-keeping requirements.

 

What you are basically doing is forcing the claimant to prove that what they have produced as being a 'true copy' is in fact a true copy. To do that they need to show the entire history of this document. After all if they've been stupid enough to destroy the original agreement they should be expected to demonstrate how a photocopy is now what they state it is.

 

They are the claimant remember, it is for them to prove all they state so make the most of this as the defendant and force them to prove everything they say, don't leave anything unchallenged.

 

Questions you can ask include 'What happened to the original'? Who destroyed it and why? Who gave them permission to destroy it?

 

Refer to this thread for more info. It's worth reading up on this as it can be a great way to attack the credibility of the 'evidence' the claimant has presented.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?162535

 

The following bit is from my own defence - the claimant subsequently discontinued.

 

If the claimant states that the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

Documents in Court - Civil Evidence Act 1995

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

The claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the claimant would request the permission of the court to question the credibility of any witness relied upon by the claimant.

 

If any of these are unavailable or incorrect I would respectfully request that the admission of reproduced documentation is denied and the claim is struck out.

 

Cancellation rights can throw them into a spin too.

 

The creditor should have sent you cancellation details (and they need to prove they did) along with the credit card or within seven days of signing the agreement (which is a requirement under s 64 (1)) and if they haven't then they’ve breached s 63 (2) (3) & (4) of the act and therefore s 63 (5) applies. Ultimately this means s 127 (4) applies which is:

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

 

(a)a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or(b) section 64(1) was not complied with.

 

So, put them to strict proof that these cancellation details were sent. You can tie this in nicely with the fact that you only have a fully executed 'agreement' with both signatures on it and are missing the unexecuted agreement mentioned earlier. The fact this is also missing will also undermine their protestations that everything was sent. Once more if they insist they sent it get them to prove it.

 

Default Notice.

 

Invalid as no date specified. Secondly, to pay ‘within’ 14 days can only be 13 days, hence not enough time allowed. Amount also likely to be incorrect due to charges that might not have been listed on T&C’s so check that.

 

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

 

The default notice must include a date for remedy, to say pay within X number of days is not good enough.

 

The Particulars of Claim

 

Specifically state sums owed due to a ‘Credit Agreement’, not even a credit card agreement. As such the claimant should be providing a credit card agreement as evidence of the debt. All of this as explained above.

 

Finally I would be tempted to make complaint tot he Solicitors Regulatory Authority as Cohens in their letter to you effectively state that ‘Payment in full will prevent judgment being entered against you’. Bit premature and matter of fact when you’ve not even pleaded yet!

 

Hope the above gives you some ammo, with a bit of research and work you'll be able to form this into a good defence and give Cohens a headache.

 

 

 

[MONTY]

Thank you so much Emandcole,

 

There is a lot of very good information here and I will need some time to digest it. I will definately lodge a complaint to the Solicitors Regulatory Authority over the next couple of days.

 

I have checked and rechecked all I have and I have not received a copy of the T&Cs. I have found a letter from Santander in my response to my letter placing the account in dispute. In this letter Santander confirm:

 

"...that the copy of the agreement we provided (actually it is a copy of a application form for a Debenhams Account) is a true copy that we are obliged to supply for a request under Section 78 CCA 1974. It contains all the terms prescribed by the CCA 1974 and the regulations made there under for this type of account. It has been signed by both parties and clearly states on the document that it is a Credit Card Agreement regulated by this Act."

 

Oh no it does not - it does not state it is a 'Credit Card Agreement' it does say, "This is an Application to open a Debenhams Account"

 

You will see from this thread that I have already submitted my defence. Can I now submit a Witness Statement with the documnets I intend to rely upon which will cover the points as highlighted by Emandcole above?

 

Monty

Edited August 25, 2010 by MONTY
spelling

[MONTY]

Hi Monty,

 

 

 

Sounds to me as if they are doing to you, exactly what they did to me. GE sent a storecard application/agreement, but the reference number & clauses were completely dfferent to the POC. This didn't stop HC from pushing on.

At this stage, when I recieved confirmation from the courts that HC intended to proceed(they must have paid the fee), it was transferred to my local court. I recieved my Allocation Questionaire. Your defence is unchanged. But this gives you the opportunity to file a "Draft order for Disclosure". I also sent a letter direct to HC,outlining my case, I gave them the opportunity to Discontinue. If they continued I would claim costs. Literally, at the very last minute I recieved a letter from the courts, they had Discontinued.

They will push & push in the hope that you give in & let them win. This is the way they have always won in the past.

 

Good luck Monty

 

Debs xx

 

I think Debbbbsy has answered part of my question. I can submit a 'Draft Order of Disclosure'. I thnk the idea of a letter (as highlighted by Foolishgirl) outlining my case and stating I will seek costs if they proceed is also a good idea. It will show the Judge I am being proactive in seeking a resolution prior to hearing

[MONTY]

By the way, I have started on my bundle and gathered together all the legislation Statutory Instruments (SI) and case law referred to in my defence. Trying to find SI 1983/1553 was not easy but I have a copy now if anybody wants it.

 

Do I have to include all that I will be refering to in its entirity? The CCA 1974 runs to 175 pages and the Law of Property Act is 115 pages. Can I not just copy the relevant sections?

 

As I did my reseach I found the following:

 

What the Judges say

 

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

 

"The creditor must be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid"

 

When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:

 

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear".

 

And from Francis Bennion known as the architect of the Consumer Credit Act following the House of Lords Appeal:

 

"Dr Lawson may be interested to know that I included the provision in question (section127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed hat nobody’s human rights were infringed.

 

Justice of the Peace (2003) 773

 

 

Monty

[debbbbsy]

Hi Monty,

 

Been away this week. Here is the letter.

 

I am writing in response to your letter dated xx xxxx 2009, which was your reply to my CPR31.14 Request dated xx xxxx 2009 (copy enclosed).

You have failed to provide me with the agreement for Mastercard ref No:- xxxxxxxxxxxxxx

 

May I bring to your attention the facts that a Store ChargeCard and Mastercard are so different. In particular the Terms and Conditions of the Store Chargecard and Mastercard differ.

As an example, but not limited to:-

1. The agreement for the Mastercard is for a ‘Credit Card’ while the Storecard agreement is for a store card.

2. Credit limits and interest rates for the 2 cards differ, as do other terms and conditions.

3. The Mastercard could be used in shops and businesses anywhere that display the Mastercard sign, while the Chargecard is restricted for use in Debenhams shops.

The Storecard application form, which you have provided (illegible, undated copy that is not in the prescribed form) is not the agreement you refer to in your Particulars of Claim (Claim Number xxxxxxx dated xx xxxx 2009) which you rely upon to enforce judgment.

I would also like to draw your attention to the following:

1. I note that the statements you have provided are incomplete, in that there are periods of the alleged agreement where these have not been provided.

2. You have failed to provide a copy of the Default Notice.

I can advise you at this stage that should your claim fail you will be liable for wasted costs and appropriate counterclaims. In order to prevent this you would be minded to discontinue your claim.

In addition, a copy of this letter and proof of postage/delivery will be sent to the court for inclusion in the case file.

 

 

Yours sincerely

Hope this helps.

 

Debs xx

[debbbbsy]

These original terms provided that the creditor could vary them at a later point.

The OFT challenged this 09/04 15 January 2004

 

"In addition, the OFT has challenged a standard term in the GE storecard agreement that purports to give GE unrestricted unilateral right to change the terms of the agreement. The OFT considers that this term was legally unfair".

 

GE cannot rely upon this clause to enforce a claim for the credit card. As the OFT have already made a legal ruling, which resulted in GE removing this clause from new agreements.

I had a fantastic discussion with a girl at Santander who tried to refer to this clause, saying that they were allowed to alter the card & the T&C's. I asked her if she was aware of the OFT's ruling.........she didn't even know what OFT stood for . Stupid & Ignorant. I advised her to apply for retraining, she terminated the call.

Edited August 28, 2010 by debbbbsy

[foolishgirl]

You will see from this thread that I have already submitted my defence. Can I now submit a Witness Statement with the documnets I intend to rely upon which will cover the points as highlighted by Emandcole above?

Whoa Monty! You're trying to jump the gun again. Try to take one step at a time.

 

I know you have submitted a defence but have you received an AQ from the court yet?

 

You have to know the processes before you can move forward. This is the law we're dealing with - it moves at the pace of snails.

You would find the little book promoted by CAG at the bottom of this thread very informative & the sales help keep this site going too - double benefits!

[MONTY]

Hi Monty,

 

Been away this week. Here is the letter.

 

Hope this helps.

 

Debs xx

 

Thank you Debbbbsy,

 

I shall modify and send a letter out today.

[MONTY]

Whoa Monty! You're trying to jump the gun again. Try to take one step at a time.

 

I know you have submitted a defence but have you received an AQ from the court yet?

 

You have to know the processes before you can move forward. This is the law we're dealing with - it moves at the pace of snails.

You would find the little book promoted by CAG at the bottom of this thread very informative & the sales help keep this site going too - double benefits!

 

Hi Foolishgirl,

 

Please do not take this the wrong way, as I am extremely appreciative of all your advice and guidance I have received to date.

 

I am a little confused by your comments. If you will loook at post 52 you will see from the chronology that I have already submitted my defence and AQ. I have also submitted amendments to my defence months ago.

 

In more recent posts you will see the Court has alocated the Claim to the small claims track and a hearing has been set for the 28th October 2010.

 

I can confirm that today I phoned the Court who have told me the Hearing Fee of £150.00 was paid in time.

 

Is there something else I have to do prior to Hearing? The Notice of Allocation to the Small Claims Track (Hearing) only requires that each party shall deliver to every other part and to the Court office copies of all documents...on which he intends to rely at the hearing no later than fourteen days before hearing.

 

You will see that I have received from Debbbbsy a template of the letter she sent to the Claimant. I will follow your previous advice and send a similar letter out today, but will add some of the observations made by Emandcole.

 

What steps in the process have I missed? Where have I 'jumped the gun?'

 

Monty