Claim Form Received - HELP NEEDED PLEASE!

[DonkeyB]

Sorry, just back at my desk - put my back out playing rugby and the sciatica is making me squirm like a DCA with a dodgy DN.

 

The defence seems fine, and can be filed online.

 

But it must go in conjunction with a letter to the court acknowledging the extension of time from Cohen's, and a letter to Cohen's giving the seven days to come up with the documents under threat of applying for immediate strike out. I've worked on these but need to complete them

 

It's not up to Cohen's to leave you hanging while they find the docs they need - let's put the pressure on them. If they fail to come up with the docs (which are bound to be worthless), then we go for strike out straight away.

 

Off to get more codeine and voltarol. Aaaargh...

[smorrissey]

ok so how long for the letters?

 

good job you can still type with putting you back out!

[smorrissey]

shall i wait for letters before filing defence

[DonkeyB]

Yeah, we'll get it all agreed and sorted to go off Monday.

[smorrissey]

Any news on the letters I need to send to court or hc is the defence ok as well

[smorrissey]

Is postggj about for some advise please

[smorrissey]

Defence - Can someone verify before submitting please....

 

In the Northampton county court

Claim number >

Between

CL Finance Ltd – Claimant

and

> - Defendant

Defence

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

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

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

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

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

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

7. Furthermore the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on 5th March 2010 and I note the date of issue on the claim as the 14th December 2009 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice.

8. Consequently due to the Claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

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

Pre-action protocols

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

The Request for Disclosure

11. Further to the case, on 21st December 2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Regulated Credit Agreement referred to in the particulars of claim and any default or termination notices, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action. This request was delivered by Royal Mail’s recorded delivery service.

12. To date the Claimant has repeatedly requested more time to action my request under the CPR and I have not received the documentation in its entirety. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

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

14. The defendant made a request on 11th April 2009 under s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit), it included the statutory fee of £1. A chase up letter was sent to GE Money on 1st May 2009. The request detailed access to the original true signed credit agreement. To date no information has been forthcoming.

The Credit Agreement

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

16. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

17. 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

18. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

19. Notwithstanding point 18, 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

20. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

21. 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

22. With regards to the Authority cited in point 19, 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."

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

The Default Notice

24. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

25. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

26. Notwithstanding point 24, I put the Claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

27. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

The Assignment of the debt

28. As stated in point 7, the notice of assignment was delivered to me on the 5th March 2010 after the Claimant had instigated this action, consequently, I require the Claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the Claimant disclose proof of posting per s196 LoP Act 1925.

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

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

Conclusion

31. I respectfully ask the court to use its case management powers to order the Claimant to disclose the information requested within this defence document and to disclose a transcript of transactions, including charges, interest and alleged payments made by the Defendant. This is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

32. I further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that the documents requested have not been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.

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

34. Alternatively, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 11 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the court’s permission to amend my statement of case accordingly.

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

Statement of Truth

I > believe the above statement to be true and factual.

Date: 24th March 2010.

[smorrissey]

subb..

[smorrissey]

can anyone help?

[smorrissey]

is anyone able to help me on this - i am getting worried now

[vjohn82]

Hi,

 

Sorry been really busy on other stuff... can devote a bit of time to this now.

 

What is it you need me to do? Check through your defence?

 

Can I assume you have not received any dislcosures from the Claimant yet?

[smorrissey]

thanks vjohn,

 

I have received some (about 1 years worth) of statements and a notice of assignment. I have also received the "credit agreement" i have uploaded all of these bu will paste links in a minute....

 

Thanks for your help

[vjohn82]

Ok... I will need to see these before I look at amending your defence.

 

Are you aware that it is not a requirement to meet para. 7.3 of Part 16 (Practice Direction) for claims issued from Northamption?

 

There is a huge chunk of your defence that is irrelevant on this score. When I see what documents have been disclosed I can make a better comment on the content of your defence.

[smorrissey]

Notice of Assignment

 

HC-NOA-MODUPL.jpg picture by creativealpha - Photobucket

 

Alleged "Credit Agreement"

 

ccaclf.jpg picture by creativealpha - Photobucket

 

Allowing More Time (good of them)

 

 

HC-TIME-MODUPL.jpg picture by creativealpha - Photobucket

 

Allowing even more time

 

HC-MORETIME-MODUPL.jpg picture by creativealpha - Photobucket

[vjohn82]

Have they still not supplied the information from their last letter???

[smorrissey]

They have failed to provide the default notice under the CPR 31.14 request.

 

I think i need a shorter defence as 8000 chars max on moneyclaim online.

 

I think the credit agreement is missing prescribed terms as well - and it seems to refer to itself as an application form.

 

At the moment HC have said I can have more time but this case was sent on the 18th december 2009 and i think it looks bad on me that no further action has been taken more than 3 months on.

[smorrissey]

I dont really want to wait another month or two for HC to send the default notice and terms/conditions etc.

[smorrissey]

I spoke with them on the 17th march and that have said they will get the default notice and terms - they sent me that letter to say they will give a further 14 days from when they supply the info but surely I should be filing a defence anyway? what do you think?

[vjohn82]

Well you have a letter from them extending the time for defence... if they have granted this permission they cannot get out of it in all honesty.

 

That said, have you filed any defence at all?

[smorrissey]

no defence at all! i really think i should

[smorrissey]

I was going to file an embarrased defence for now but unsure of what to do.

 

What do you think about the credit agreement?

[vjohn82]

Agreement extending the period for filing a defence

 

15.5

 

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

 

Give me the dates...

 

When did you received the claim?

 

Did you acknowledge service?

 

We need to calculate the dates properly...

[vjohn82]

I was going to file an embarrased defence for now but unsure of what to do.

 

What do you think about the credit agreement?

 

Credit agreement in the form you have presented is unenforceable.

[smorrissey]

Claim received: 18th Dec 2009

 

Acknowledgment: Yes

[smorrissey]

Acknowledgment of Service was received by the Court and processed on 21 December 2009