CL Finance/cohen Claimform - old Virgin Money Credit Card Debt WON

gh2008 · July 10, 2010

IMHO that order was written BEFORE your application was received by looking at the wording of it.

pigland · July 21, 2010

Thanks everyone....Now I'm confused...Go for strike out or put in a defence?

Or both?

bazaar · July 22, 2010

I think the strike out can be part of your defence

car2403 · July 22, 2010

I think your default position should be to apply for a strike out, using an 'in the alternative, where this Court decides not to strike out the claim, the Defendant submits the following defence' type approach, covering all bases.

pigland · July 23, 2010

Thank you all,

I am now going to fill out a N244 and will go for a strike out. I have never written a defence apart from an embarrassed defence. I will be researching and posting one up. Any pointers for researching this defence are gratefully received.

Kind regards,

Pigland

car2403 · July 23, 2010

Some to get you started;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126111-cl-finance-ltd-recieved-4.html#post1350484

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/121774-lloyds-tsb-credit-card-5.html#post1461198

http://www.consumeractiongroup.co.uk/forum/legal-issues/144007-help-amex-no-cca-3.html#post1549360

This defence (below) also includes bringing a CPR 3.4 as the claim discloses no grounds and could be an abuse of the process.

Help - Mum being taken to court by Link Financial.

No agreement and the possible use of CPR3.4 and case struck out due to non production.

No agreement & use of Civil Procedures Rules to prevent court case happening

welcome fianance/Court case started.

Help! Court Claim from Howard Cohen on behalf of GE Money

1st Credit vs Animal / **DISCONTINUED**

And these, maybe;

Some examples where the cagger has gone for a strikeout due to non production of paperwork due to court orders. (includes a link to Civil Procedure Rules)

Suggested letter where the claimant fails to comply with Court Orders

No agreement & use of Civil Procedures Rules to prevent court case happening

Capquest County Court Claim

Shortfall Court Summons - URGENT help needed please!

Should give you what you need :lol:

pigland · July 23, 2010

Thanks Car,

That's really helpful. I'm now going to get a up of tea and start reading!

diddydicky · July 23, 2010

very sound advice (as usual) from car

courts are VERY reluctant to strike cases out- therefore it is essential that you suggest another option to the court in the event that they decline your application to them to strike out

squidward · July 24, 2010

Subbing

Squidward

pigland · August 1, 2010

Hi all,

I've now finished my cup of tea!

I have been doing a lot of reading and have been working on patching together a Defense.

Here is a copy of the Witness Statement sent by Cl Finance.

I XXX of CL Finannce xxxx will say as follows;

1. I am a Collections Officer, of CL Finance Ltd, and I am authorised by the claimant to make this statement on its behalf. I make this statement in support of the Claimant’s claim to recover monies owing to the Claimant by the Defendant pursuant to a credit agreement. Save where I indicate otherwise, the statements in this witness statement are from my own knowledge.

2. On xx xx 2004 the Defendant entered into a regulated credit agreement with MBNA Europe Bank Ltd, account number xx xx. There is now exhibited hereto marked “GSD1” a copy of said agreement.

3. From time to time, the Defendant made use of the credit facilities provided under the agreement. There are now exhibited hereto marked “GSD2” copy monthly statements of the account from February 2008 to the final statement being xxxx 2009. There was a balance of £xxxx.xx outstanding upon the commencement of these proceedings.

4. On 6th February 2009, pursuant to Section 87(1) of the Consumer Credit Act 1974, a Default Notice was served upon the Defendant requiring payment of the arrears to be made, the Defendant having failed to make payment in accordance with the terms of the agreement. The Defendant failed to comply with the same and therefore the agreement was terminated. There is now exhibited hereto marked “GSD3” a copy of said Default notice.

5. Under the terms and conditions of the credit agreement, MBNA Europe Bank Limited reserve the right to transfer their rights and duties at any time and this does not affect the Defendant’s ability to remedy the Default. I can confirm that the Defendant failed to make payment of the arrears to neither MBNA Europe Bank Limited nor CL Finance Limited in any event.

6. By deed of assignment, dated 20th February 2009, MBNA Europe Bank Ltd assigned the account absolutely to CL Finance Limited, notice of such assignment being sent to the Defendant on 6th March 2009. There is now exhibited hereto marked “GSD4” a copy of said notice of assignment.

7. The Defendant’s defence has been noted, however the Claimant would like to draw the court’s attention to paragraphs 2 – 6, which provide details of the account and assignment.

8. I therefore contend that the Defendant has no valid defence to the claim and respectfully submit that the Defendant is liable to CL Finance Limited for the sum of £xxxx.xx claimed in these proceedings, and request that there be judgment in favour of CL Finance Limited in that sum, together with the sum of £290.00 being the fixed commencement costs and £200.00 Allocation Questionnaire fee and £300.00 hearing fee, together with any other sum that the court deems just upon entering judgment.

GSD1-The Agreement

There is nothing linking GSD1 Page 1 & 2 together.

So they do not look like front and back of the same document.

Page 1 has a ref no. vir 04/04

Page 2 has a ref no. vir 101-p-02 and is then blurred

They have also included another 4 pages of totally different looking terms and conditions. I now know these to be a copy of their later terms and conditions, there is nothing linking these to pages 1 or 2. They have however unbelievably inserted my name and old address on the front page in a different font!!! and in a different font again they have inserted my credit Card agreement number!

Only the 1st page has what looks like a signature by them.

GSD2 - They have only sent statements from 2008 to 2009 and they start with a carried forward date!

GSD3 - DN

The date of the DN was 6 February 2009 this was a Friday. It states; ‘In order to remedy this breach we must receive a payment of £xxxx.xx by 23rd February.’

If even sent to the correct address!

1st class post date of service would be the 10th (Tuesday). This only provides 13 days to remedy the default. Therefore not enough time to remedy. As the DN was dated 6 February and this is a Friday If it was posted just before a weekend then that will extend the time for delivery further given only 11 Days to remedy. Asa no Proof of Service supplied it must be deemed to be sent 2nd class.

The Claimants have ignored the previous orders of the Court and have not provided Proof of Service, or specified the class of post. As there is no proof of the method of posting it should therefore be deemed 2nd class (4 working days for delivery) The DN is dated 6 February (Friday) so the earliest it could be deemed as served is Thursday 12 February 2009, This makes the DN invalid in itself as only provides 11 days to remedy the default. However as the DN was dated 6 February being Friday then yet again it is likely that as this is followed by a weekend then the time to remedy would be even shorter!

The DN refers to para 8 on the agreement. The agreement they sent has no paragraph 8. However, the additional later terms and conditions sent as per GSD1 has.

Further to the above I’m looking to submit this as a fully particularised Defence.

CL Finance Claimant

and

Miss D Screet

1. I, XXX, of XXX, XXX am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited.

2. In accordance with the directions of District Judge XXX made on xx July 2010, this is an amended defence and counterclaim that supersedes the ‘Embarrassed’ defence filed xx xx 2010 .

3. The statements made in this defence are in reply and opposition to the Claimants Statement of Claim and the subsequent witness statements of Mr XXX 09 xxxx 2010

4. I Deny that I am liable to the Claimant in the sum of £x xxx.xx or indeed at all.

The Agreement

5. I neither admit nor deny that I entered into regulated agreement with MBNA Europe Bank for the provision of a Virgin Money Credit Card, account number xxxxxxxxxxxxxxxx and put the Claimant to strict proof.

6. With reference to paragraph 2 of the Claimants Witness Statement and the document Exhibited as ‘GSD1’, I require the opportunity to inspect the original document in order to satisfy myself that it exists and was signed by my own hand.

7. If 'copies' of any of the documents referred to in this case 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 is required, including but not limited to:

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

b. 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);

c. 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;

d. 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.

8. I would also bring to the courts attention the following:

Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems, BIP 0008:2004 (previously PD 0008 ) issued by the British Standards Institution (BSI).

This Code of Practice provides guidelines to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The basis of the guidelines are that process under which documents are managed are as important as the technology used, for example where a document is printed, it should accurately reproduce the contents of the "original". The Civil Evidence Act (1995) introduces a flexible system whereby all documents and copy documents, including computer records, can be admitted as evidence in civil proceedings. A judge will still have to be persuaded to treat that evidence as reliable, therefore organisations will have to prove the authenticity and reliability of the record.

The key principles behind BIP 0008 are:

Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.

Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed.

Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.

9. In light of point 7 above, I therefore put the claimant to strict proof that the documents they are relying upon in this claim are compliant with the key principles of points 7 & 8 above and that failure to supply this proof renders the evidence inadmissible.

10. With reference to paragraph 8 of the Claimant’s Witness Statement, the claimant states that the original document is in the possession MBNA Europe Bank Limited, yet despite claiming to have been assigned the account, they appear to have made no attempt to obtain this crucial document from the assignor.

11. The claimant has failed to adduce hearsay evidence as required by the Civil Evidence Act 1995 and as directed by. As a consequence the document marked ‘GSD1’ should be set aside as per point 9 above.

12. I deny that the copy document exhibited as “GSD1” in the Claimant’s Witness statement of 09 xxxx 2010 is an enforceable agreement under the terms of the Consumer Credit Act

13. The documentation which the claimant claims to be relying upon to bring this action must contain the prescribed terms specified 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) 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-

a. Number of repayments;

b. Amount of repayments;

c. Frequency and timing of repayments;

d. Dates of repayments;

e. 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.

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 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.

15. It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document . 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.""

16. 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.

17. I accept that I made an application for a credit card and that in consequence of that application MBNA Europe Bank Ltd advanced monies to me.

18. With reference to paragraph 3 of the Claimant’s Witness Statement, should the claimant seek to rely upon the fact that they can show that the

defendant has had benefit of the monies and therefore the defendant is liable, I refer to 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 s65(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;"

Statement of Account

19. I deny that a balance of £xxxx.xx is outstanding under the agreement and contend that the copy statements exhibited as ‘GSD3’ in the Claimants Witness Statement include unlawful charges. Furthermore the statements are incomplete and begin with a balance carried forward, the origin of which remains unexplained.

20. The Claimant has failed to comply with the Order made by District Judge XXX made on xx xx 2010 and yet again by District Judge xx on xx xx 2010 by failing to serve ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of this order’

21. The documents filed with the court on the 10th June 2010 included no more than the same incomplete set of copy statements previously disclosed by the Claimant.

22. The Claimant has disclosed limited copy statements however these statements show an opening balance of £xxxx.xx. They do not show how that earlier amount has been calculated. Furthermore, the statements show various ‘default sums’ and fees for which there would appear to be no contractual basis. Consequently those fees are unlawful. Furthermore, the Defendant has no means of ascertaining whether the earlier sums validly accrued.

23. I contend that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause in that it does not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred.(Dunlop Co Ltd v New Garage Ltd [1915] AC 79)

24. The Claimant has not disclosed a copy of the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception) “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage)

25. The Charges referred to relate to a “LATE DEFAULT SUM”, which is a standard fee of £12 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate.

26. The second charge is an “OVERLIMIT DEFAULT SUM” which is again charged as a standard fee, this time of £12, which is charged for every month in which an account exceeds the credit limit imposed. Again the fee is charged irrespective of the extent by which the credit limit is exceeded, it is the same fee if the limit is exceeded by £10 or £10,000. The Claimant suffers no actual loss in the sense that the Claimant continues to charge interest on the balance outstanding and consequently suffers no loss. The clause must therefore be penal in nature.

27. Furthermore, the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer.

28. The Defendant refers to the Office of Fair Trading guidance on this issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unfair.

The Default Notice

29. I neither admit nor deny that I received the Default Notice exhibited as ‘GSD3’ in the Claimants Witness Statement until after the start of these proceedings.

30. Notwithstanding the points 29, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

31. The date on the copy Default Notice is 06 xxxx 2009 (Friday). The Claimant has failed to provide proof of service for the Default Notice as Ordered by District Judge XXX on xx xx 2010 and by District Judge xx on xx xx 2010. (Friday). As there is no proof of the method of posting, it should therefore be deemed 2nd class (4 working days for delivery) and if the court wishes to accept the date on the Default Notice as the date of posting then the earliest it could be deemed as served is Thursday 12 February 2009. This makes the DN invalid in itself as only provides 11 days to remedy the default.

32. The Default Notice exhibited by the Claimant is invalid on three counts:-

a. The arrears include unlawful charges

b. The remedy date of xx xxxx 2009 does not allow 14 calendar days from the deemed date of service (xx xxxx 2009)

c. The agreement was terminated by assignment on 20 March 2009

33. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of the breach and include accurate instructions on how to remedy any such breach. The prescribed format for such documents 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).

34. 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 also 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).

The Assignment

35. I deny that a lawful and absolute assignment has taken place.

36. With reference to paragraph 6 of the Claimants witness Statement I do not understand how a deed of assignment dated 29 December 2008 can be used as evidence that the account referenced xxxxxxxxxxxxxxxx was assigned absolutely on the 20th February 2009.

37. The document sent by the Claimant on the 9th June 2010 and filed as the Deed of Assignment contains 7 pages. These are made up of 6 separate pages copied from a ring binder. There is nothing to connect the 7th page showing account number xxxxxxxxxxxxxxxxxxx with the pages setting out the agreement and its execution by the parties. Furthermore, the date of 20 February 2009 is not shown on any page.

38. As per the Order made by District Judge xx on the xxx and again by District Judge xx on the 12 March 2010 the Claimant has failed to provide proof of service or proof of posting compliant with s196 of The Law of Property Act 1925.

39. Under section 136 of the Law of Property Act 1925 the assignor, or assignee, must notify the debtor in writing and this must be effected in law via section 196 of the Act in order to lawfully attain the right to issue proceedings. The Act stipulates that the notice must be served via registered post which is covered under the Recorded Delivery Service Act 1962.

40. The Recorded Delivery Service Act 1962 states a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 (schedule 8 notes any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

41. The Defendant would like to refer the court to the case, which placed importance on s.136 of the Act, in W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169 where it was held: “written notice of the assignment is an essential part of the transfer of title to the debt, and the requirements of the sub-section must be strictly complied with. I think that the notice itself must be strictly accurate, in particular, in regard to the date which is given for the assignment.”

42. Further, and in any event the notice referred to identifies a balance outstanding. That balance includes default charges imposed pursuant to an unfair contract term and/or a penalty clause.

43. I also note that the sum quoted in the Notice of Assignment is £xxxx.xx and that this differs from the ‘Balance Sold’ figure of [£5 less] quoted in the Deed of Assignment.

44. Consequently any Notice served by the Claimant which referred to the alleged balance outstanding would be inaccurate and therefore invalid.

45. As a consequence of its failure to serve a valid Notice of Assignment, the Claimant had no right to bring this action is his own name.

Conclusion

46. The claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a Credit Agreement is inadmissible as evidence in this claim.

47. The claimant has not been correctly assigned this alleged account and has no legal right of action for the aforementioned account.

W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 refers.

48. The claimant has failed to serve a valid default notice, and the claimant should not be bringing this action before the court.

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.

49. In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement and costs/counterclaim be awarded in favour of the defendant.

Counterclaim

50. The defendant repeats his defence

Statement of Truth

I would appreciate any help and comments!

Kind regards,

Pigland

pigland · August 1, 2010

Oops I was meant to omit 10 and 11 from the defense!

pigland · August 1, 2010

and....I must be tired....I forgot to mention in my Defense the fact that the Agreement is illegible. Could someone with more knowledge please insert this in the witness statement please!

pigland · August 4, 2010

I need some help cleaning up my defence and going for the strike out.

This is now urgent!

car2403 · August 5, 2010

Did I miss something, or were you entering a defence? That above looks like a witness statement, which comes at a later stage - a defence is a short-ish version of that, say 9-10 paragraphs, saying why their claim should fail, giving authorities, but not really delving in to too much detail. What you have there will help you later on, though, I'd imagine

If you're going to request a strike out, it's a slightly different process, so would be useful to know what you're planning to do on that front, first.

Incidentally, you can apply for a strike out, and submit a defence in the alternative, should the strike out be unsuccessful. You could also enter a defence requesting a strike out as part of it. I'm trying not to confuse you too early () but it's really crucial you have a plan to move forward before you dip in with both feet.

Oh, my inbox is always full, but I'll get to the thread with responses ASAP

pigland · August 7, 2010

Thanks Car,

Is this more like it? I know it's not 9 paragraphs!!! I'd appreciate your comments if it's worth amending, removing or adding things?

1. I xxxxxxxxxxxxxx the defendant in this action and contend my defence to the claim made by CL Finance Ltd as follows:-

2. The Defendant neither admits nor denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all.

3. It is admitted that I have held an account with the MBNA and that the Agreement was regulated under the terms of the Consumer Credit Act 1974. I make further submissions to the enforceability of that contract below but I put the claimant to strict proof that the said agreement is enforceable both as of the date of its inception and at all times thereafter.

4. If, which is not admitted, the agreement is enforceable I do not admit that I am indebted to the claimant in the sums claimed. I put the claimant to strict proof of all sums claimed.

5. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

6. The Claimant’s claim to be entitled to £xxxxxxxx and interest, or to any other sum, is denied.

7.The defendant respectfully requests the amendment of this defence if such paperwork is presented to the court..

8. Under the Act there are certain conditions laid down by parliament which must be complied with if such a consumer credit agreement is properly executed and subject to enforcement by the courts

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

10. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document. 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. .

11. It is respectfully requested that the court consider the precedent quoted above in making its judgement on the enforceability of the document the Claimant is reliant upon in bringing action.

12. The Claimant has failed to comply with the Order made by District Judge XXX made on xx xx 2010 and yet again by District Judge xx on xx xx 2010 by failing to serve ‘A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of this order’. The documents filed with the court on the 10th June 2010 included no more than the same incomplete set of copy statements previously disclosed by the Claimant.

13. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

14. 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. It is averred that the default notice referred to in the particulars of claim does not allow the prescribed timeframe of 14 days after service to remedy any breach referred to in said default notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice.

16. 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 amount detailed in the Claimant’s claim is incorrect and also, includes unfair charges, which are unlawful at Common Law, The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the UnfairTerms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

17. Without a valid default notice it could be inferred that the bringing about of a county court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA.

18. The default notice supplied by the Claimant in response to the order of the Court dated xx 2009 is dated Friday xx XXXX, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday xx XXXX, namely Wednesday xx xxxx 2009, not the xx XXXX 2009 as stated in the Default notice.

19. The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

20. The failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim including; A full and complete statement of account, a legible agreement, and the invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

Do I put in for costs here? I still haven't received my costs from the last hearing as ordered by the Judge!

If the Judge doesn't strike out prior to going to Court could the claimants use this?

Thanks for your help!

Kind regards,

Pigland

pigland · August 7, 2010