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

[pigland]

Thanks Car,

 

'So, I think you were going to ask for a SO as part of your Defence, in the end?'

 

Okay this is where I'm still confused...So if i fill out a defence I don't need to fill out a N244? If this is the case do I need to attach a Witness Statement?

 

'You'll need to use the template that you used for your original defence and highlight the changes you've made - and removals from the original should have the font struck through (probably easy if you're using Word) and any additions/amendments you make should be underlined. This is so the other parties can see the amendments you've made from your original defence.'

 

I assume you mean my original embarrassed defence as per post 1?

I also assume I don't have to fill out another form and I can just type it on A4 quoting case numbers etc and submit?

 

Get your other points!

 

Thanks so much.......

 

Kind regards,

 

Pigland

[car2403]

Okay this is where I'm still confused...So if i fill out a defence I don't need to fill out a N244? If this is the case do I need to attach a Witness Statement?

 

If you're asking for a SO as part of your Defence, then no, there's no need for N244 - the witness statement should be ordered at a later stage (which is what I mentioned before, about expanding on the defence, etc )

 

I assume you mean my original embarrassed defence as per post 1?

 

Yup

 

I also assume I don't have to fill out another form and I can just type it on A4 quoting case numbers etc and submit?

 

Yup

[pigland]

By jove...I think I've got it!

 

So, as not all of the documents have been supplied as ordered; Would that in legal terms mean I'm still embarrassed?

[diddydicky]

wrong thread sorry

[pigland]

This is just great....trying to piece together my particularised defence , with strike-out for tomorrow and I can't scroll pages on CAG!!

 

Is anyone else having problems, is it my computer, or have I done something silly and disabled something?

[RobinWayRobinme]

Yes same problem. I'll hit what used to be red triangle as I'm having probs on my thread. Same situation as you. Glad to see you have been getting some other help whilst I've been tied up on my case.

R

[pigland]

Glad you got your case tied up. I thought I was going mad with the pages. I'm now going through my Embarassed defence as per post 1 and trying to get a defence together. i think I'm going to be seeing 4 in the morning!

[RobinWayRobinme]

I'm still at it as well. Good luck

R

[Guest dvdriley]

trying to read through this thread. how to i get past the first page ie post No 20, next thread button does not do it

[pigland]

Yep u 2. Thanks for your help!

[pigland]

This has to be in today! Can someone please verify I'm now going in the right direction. I've been up until 4;30, I seem to be going around in circles and this coupled with the CAG page buttons not working is kind of depressing! I really don't understand how I'm going to mix this following Defence with the original embarrassed defence. (See Car's post 132)

 

For information the original embarassed defence is in post 1.

 

1. I xxxxxx am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank 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. 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.

 

4.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.

 

5. 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.

 

6. 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.

 

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

 

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

 

10. 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

 

11 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)

 

12. 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.

 

13. 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.

 

14. 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.

 

15. 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.

 

16. 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)

 

17. 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.

 

18. 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.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, 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.

 

2. 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.

 

19. 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.

 

20. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach

 

21. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the 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).

 

22. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an 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.

 

 

23. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

24. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

25. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

26. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

27. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

28. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

29. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

30. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

31. 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.

32. Further to the order made by District Judge xxx on xx xx2010 and again by District Judge xx on xx xx 2010 at xx county court; the claimant has failed to comply in that:

 

No clearly legible copy of the agreement has been supplied which complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered.

No Proof of service of a Notice of Assignment by the original creditor has been supplied as ordered.

No Proof of Service of the copy Default Notice has been supplied as ordered.

The copy Default notice supplied is not compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and termination Notices) Regulations 1983 (SI 1983/1561) as amended. It doesn’t allow the correct period of time for the breach to be remedied.

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 the commencement of this case has not been supplied as ordered. The statements supplied commence in 2008 with a carried forward balance.

 

In addition the Claimant has not paid my costs as previously ordered by District Judge xx on xx xx 2010.

 

The failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim 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.

 

I hope I've now got it as I'm now losing the will to live! If it needs tweaking or I'm still overcomplicating it please let me know!

 

Kind regards.

 

Very sleepy PL

[citizenB]

This looks ok to me PL, TBH, I am not sure of the question you are asking

[pigland]

Hi Citizenb,

 

Thanks for your response, I was beginning to doubt my sanctity! I'm sitting here working with matches in my eye!

 

I'm going to submit today the defence; as you can see I'm going for Strike out on the defence... Do I also ask for costs and put in a bill of costs, or is this later?

 

Kind regards,

 

PL

[gh2008]

paras 7-13 - what exactly are you trying to say because it doesn't seem to me you actually give any reason as to why this applies in your case??

[citizenB]

It is my understanding that costs should be presented to the court and opposition no later than 48 hours before the hearing.

[pigland]

paras 7-13 - what exactly are you trying to say because it doesn't seem to me you actually give any reason as to why this applies in your case??

 

GH...

 

7-8. they've only sent limited statements, not for the full period from the beginning of the agreement. So how can I admit the sums as they haven't shown how they are made up...

 

8-13 The agreement sent is illegible and they have attached some later terms and conditions that are not within the four corners of the illegible agreement.

 

If I can word it any better any suggestions welcome...this is now a time issue!

 

Thank you.

 

kind regards,

 

PL

[pigland]

 

GH...

 

7-8. they've only sent limited statements, not for the full period from the beginning of the agreement. So how can I admit the sums as they haven't shown how they are made up...

 

8-13 The agreement sent is illegible and they have attached some later terms and conditions that are not within the four corners of the illegible agreement.

 

If I can word it any better any suggestions welcome...this is now a time issue!

 

Thank you.

 

kind regards,

 

PL

 

Now to read;

 

7. 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.

 

8. The Claimant’s claim to be entitled to £xxxxxxxx and interest, or to any other sum, is denied. The defendant respectfully requests the amendment of this defence if such paperwork as above is presented to the court..

 

9 The Claimants have filed an illegible copy of a credit agreement and some later terms and conditions which it is evident do not form part of this original agreement.

 

10. Under the Consumer Credit Act 1974 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

 

11 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)

 

12. 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.

 

13. 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.

 

Is this any better?

 

Thanks again.

 

PL

[pigland]

I have now injected myself with Caffeine and removed the matchsticks from my eyes.

 

Here (again) is my final defence...Unless of course it can be improved?

1. I Miss D. Screet am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank 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. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

7. 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.

 

8. The Claimant’s claim to be entitled to £xxxxxxxx and interest, or to any other sum, is denied. The defendant respectfully requests the amendment of this defence if such paperwork as above is presented to the court.

 

9. The Claimants have filed an illegible copy of a credit agreement and some later terms and conditions which it is evident do not form part of this original agreement.

 

10. Under the Consumer Credit Act 1974 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

 

11 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)

 

12. 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.

 

13. 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.

 

 

14. 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.

 

15. 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)

 

16. 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.

 

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.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, 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.

 

2. 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.

 

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. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach

 

20. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the 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).

 

21. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an 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.

 

22. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

23. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

24. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

25. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

26. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

27. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

28. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

29. An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

30. Further to the order made by District Judge xxx on xx xx 2010 and again by District Judge xx on xx xx 2010 at xx county court; the claimant has failed to comply in that:

 

No clearly legible copy of the agreement has been supplied which complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered. No Proof of service of a Notice of Assignment by the original creditor has been supplied as ordered. No Proof of Service of the copy Default Notice has been supplied as ordered. The copy Default notice supplied is not compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and termination Notices) Regulations 1983 (SI 1983/1561) as amended. It doesn’t allow the correct period of time for the breach to be remedied. 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 the commencement of this case has not been supplied as ordered. The statements supplied commence in 2008 with a carried forward balance.

 

31. In addition the Claimant has not paid my costs as previously ordered by District Judge xx on xx xx 2010.

 

32. Finally, the failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim 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.

 

PL

[pigland]

I have now injected myself with Caffeine and removed the matchsticks from my eyes.

 

Here (again) is my final defence...Unless of course it can be improved?

 

1. I, Miss D. Screet am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank 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. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

7. 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.

 

8. The Claimant’s claim to be entitled to £xxxxxxxx and interest, or to any other sum, is denied. The defendant respectfully requests the amendment of this defence if such paperwork as above is presented to the court.

 

9. The Claimants have filed an illegible copy of a credit agreement and some later terms and conditions which it is evident do not form part of this original agreement.

 

10. Under the Consumer Credit Act 1974 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

 

11 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)

 

12. 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.

 

13. 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.

 

14. 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.

 

15. 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)

 

16. 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.

 

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.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, 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.

 

2. 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.

 

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. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach

 

20. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the 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).

 

21. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an 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.

 

22. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

23. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

24. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

25. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

26. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

27. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

28. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

29. An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

30. Further to the order made by District Judge xxx on xx xx 2010 and again by District Judge xx on xx xx 2010 at xx county court; the claimant has failed to comply in that:

 

No clearly legible copy of the agreement has been supplied which complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered. No Proof of service of a Notice of Assignment by the original creditor has been supplied as ordered. No Proof of Service of the copy Default Notice has been supplied as ordered. The copy Default notice supplied is not compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and termination Notices) Regulations 1983 (SI 1983/1561) as amended. It doesn’t allow the correct period of time for the breach to be remedied. 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 the commencement of this case has not been supplied as ordered. The statements supplied commence in 2008 with a carried forward balance.

 

31. In addition the Claimant has not paid my costs as previously ordered by District Judge xx on xx xx 2010.

 

32. Finally, the failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim 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.

 

PL

[pt2537]

you dont need to quote large chunks of case law nor do you need to recite what the 1974 act says

 

you need to apply the law to the facts,

 

For example, if you have the agremeent the claim is based upon

 

 

1. it is denied that the agreement is properly executed within the meaning of s61(1)(a) CCA 1974 and therefore enforceable against the Defendant for the following reasons

 

1.1 The agreement fails to state accurately the rate of interest to be applied to the credit contrary to schedule 6 Consumer Credit Agreement regulations 1983 as the rate of interest applied was X and the agreement stated Y

 

Something alone those lines, as you need to set out the issues, if you dont have the agreement you cant plead its defects and you are prejudiced accordingly

[gh2008]

Hi PT

 

PL - take carefull note of what PT says - by mixing lots of caselaw quotes in you are diluting the main points which are almost lost in teh top and bottom.

 

Basically they do not have an agreement, or a valid DN

AND

they have not complied with a previous Order of the Court

[pigland]

Thanks Pt and GH

 

It's getting leaner! ...and closer to being submitted

 

Here is another final draught for all to peruse!

1. I Miss D. Screet am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank 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. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

7. 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.

 

8. The Claimant’s claim to be entitled to £xxxxxxxx and interest, or to any other sum, is denied. The defendant respectfully requests the amendment of this defence if such paperwork as above is presented to the court.

 

9. The Claimants have filed an illegible copy of a credit agreement and some later terms and conditions which it is evident do not form part of this original agreement.

 

10. Under the Consumer Credit Act 1974 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

 

11. 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.

 

12. 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)

 

13. 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.

 

14. 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.

 

15. 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.

 

16. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach

 

17. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the 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).

 

18. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

19. Further to the order made by District Judge xxx on xx xx 2010 and again by District Judge xx on xx xx 2010 at xx county court; the claimant has failed to comply in that:

 

No clearly legible copy of the agreement has been supplied which complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered. No Proof of service of a Notice of Assignment by the original creditor has been supplied as ordered. No Proof of Service of the copy Default Notice has been supplied as ordered. The copy Default notice supplied is not compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and termination Notices) Regulations 1983 (SI 1983/1561) as amended. It doesn’t allow the correct period of time for the breach to be remedied. 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 the commencement of this case has not been supplied as ordered. The statements supplied commence in 2008 with a carried forward balance.

 

20. In addition the Claimant has not paid my costs as previously ordered by District Judge xx on xx xx 2010.

 

21. Finally, the failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim 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.

 

I'm beginning to get the point. However...I'm scared to keep cutting it in case I cut the valid bits!

 

Do you think some bits in their may still be irrelevant for now?

 

Thank you

 

PL

[pigland]

you dont need to quote large chunks of case law nor do you need to recite what the 1974 act says

 

you need to apply the law to the facts,

 

For example, if you have the agremeent the claim is based upon

 

 

1. it is denied that the agreement is properly executed within the meaning of s61(1)(a) CCA 1974 and therefore enforceable against the Defendant for the following reasons

 

1.1 The agreement fails to state accurately the rate of interest to be applied to the credit contrary to schedule 6 Consumer Credit Agreement regulations 1983 as the rate of interest applied was X and the agreement stated Y

 

Something alone those lines, as you need to set out the issues, if you dont have the agreement you cant plead its defects and you are prejudiced accordingly

 

Hi Pt,

 

Sorry, just cottoned on..I just feel that I'm whittling a big log to get a lolly stick!.......... but hey I suppose you've got to learn about the wood and keep cutting to get the perfect stick!

 

Thanks for your and other's guiding hands!

[RobinWayRobinme]

Hi pigland, late night myself.

You don't need to include reference to case law in your defence, that will come out later (PT advice). Also if you have time, try to bring phrases like "the defendant denies that... and puts the claimant to strict proof thereof" I know yu have put something like this generally at start, but it is good to make these ascertions for appropriate parts of defence

Wish I had more time today to go through it further (time is always our enemy, isn't it?)

R

[pigland]

Hi all,

 

How's this?

 

1. I, Miss D. Screet am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank 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. 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.

 

4. The Claimants have filed an illegible copy of a credit agreement and some later terms and conditions it is denied that the agreement is properly executed within the meaning of s61(1)(a) CCA 1974 and therefore enforceable against the Defendant for the following reasons as the terms and conditions do not form part of this original agreement.

 

5. 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.

 

6. 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.

 

7. 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.

 

8. 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. 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.

 

9. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the 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).

 

10. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

11. Further to the order made by District Judge xxx on xx xx 2010 and again by District Judge xx on xx xx 2010 at xx county court; the claimant has failed to comply in that:

 

No clearly legible copy of the agreement has been supplied which complies with the Consumer Credit Act 1974 and all subsequent regulations as ordered. No Proof of service of a Notice of Assignment by the original creditor has been supplied as ordered. No Proof of Service of the copy Default Notice has been supplied as ordered. The copy Default notice supplied is not compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and termination Notices) Regulations 1983 (SI 1983/1561) as amended. It doesn’t allow the correct period of time for the breach to be remedied. 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 the commencement of this case has not been supplied as ordered. The statements supplied commence in 2008 with a carried forward balance.

 

12. In addition the Claimant has not paid my costs as previously ordered by District Judge xx on xx xx 2010.

 

13. Finally, the failure of the claimant to comply with Court orders to supply documents outlined in the particulars of claim 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.

 

Kind regards,

 

PL