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MONTY v CREATION FINANCE

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In 1999 I opened an Alders store card which at the time was financed by Ikano Finance. Some time later Creation Fiancial Services toook on the card.

 

Long story short - I defaulted on the account and requested a copy of the original agreement. Creation wrote back confirming that I should write to Ikano if I wanted a copy of the original agreement. I wrote back telling Creation that they were responsible for the provision of the agreement. Creation confirmed they could not provide the same. I placed the account in dispute.

 

I was contaced by Drydens who provided what they claim to be a reconstituted agreement and citing recent legal precedent saying they were not obliged to provide a copy of the original.

 

Time has gone by and Drydens have now issued a claim through CCBC.

 

I will update this thread later as I am running out of time but I will provide detial of CPR requests made to Drydens

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CHRONOLOGY

 

XX/03/1999 - ACCOUNT OPENED WITH ALLDERS (IKANO FINANCE)

 

??/??/2004 - ACCOUNT TRANSFERRED TO CREATION

 

XX/09/2009 - DEFAULT NOTICE RECEIVED (APPEARS TO BE IN THE CORECT FORMAT)

 

XX/09/2009 - SUBJECT ACCESS REQUEST - PLEASE SUPPLY ALL DATA YOU HOLD ON ME

 

XX/10/2009 - CREATION PROVIDE STATEMENTS BACK TO 21/02/2005 & A GENERIC 'DUET CARD GUIDE'. THE COVERING LETTER STATES THAT THE ACCOUNT WAS OPENED WITH IKANO FINANCE AND I NEED TO CONTACT IKANO FOR THE ORIGINAL APPLICATION TOGETHER WITH A FEE OF £1.00

 

XX/11/2009 - FORMAL REQUEST PERSUANT TO s.78 CCA 1974 FOR A TRUE COPY OF THE CREDIT AGREEMENT

 

XX/12/2009 - MY LETTER OF XX/11/2009 (s.78 REQUEST) RETURNED WITH £1.00 POSTAL ORDER. THE COVERING LETTER STATES THAT THE ACCOUNT WAS OPENED WITH IKANO FINANCE AND I NEED TO CONTACT IKANO FOR THE ORIGINAL APPLICATION TOGETHER WITH A FEE OF £1.00

 

XX/01/2010 - FORMAL NOTICE ACCOUNT IN DISPUTE. NOTIFIED THAT (CREATION) ARE OBLIGED TO SUPPLY DOCUMENTS WHETHER (THEY) ARE THE ORIGINAL CREDITOR OR NOT UNDER S189 OF THE CCA 1974.

 

XX/02/2010 - LETTER FROM DRYDENS 'UNLESS WE HEAR FROM YOU BEFOREHAND, LEGAL PROCEEDINGS WILL BE ISSUED WITHIN 14 DAYS'

 

XX/03/2010 - LETTER TO DRYDENS 'YOUR CLIENT (CREATION) HAS FAILED TO COMPLY WITH MY REQUEST PERSUANT TO s.78 OF CCA 1974. PROVISIONS OF s.78(6) NOW APPLY.

 

XX/03/2010 - FROM DRYDENS 'WE ARE CURENTLY INVESTIGATING WITH OUR CLIENT'

 

XX/05/2010 - DRYDENS PROVIDE RECONSTITUTED AGREEMENT WHICH SHOWSMY CURRENT ADDRESS NOT THE ADDRESS APPLICABLE WHEN THE PRIGINAL ACCOUNT WAS OPENED IN 1999. 'LEGAL PROCEDINGS IN 7 DAYS IN THE ABSENCE OF SATISFACTORY REPAYMENT PROPOSALS'.

 

XX/05/2010 - LETTER TO DRYDENS - 'THE DOCUMENT YOU SUPPLIED...IS A RECONSTITUTED AGREEMENT AND NOT THAT DEFINED IN SECTION 61(1) OF CCA 1974. FOR AVOIDANCE OF DOUBT, SINCE THE AGREEMENT ...COMMENCED PRIOR TO INCEPTION OF CCA 2006 SECTION 15 OF THE 2006 ACT HAS NO EFFECT AND THE CCA 1974 IS THE RELEVANT ACT.

 

XX/06/2010 - LETTER FROM DRYDENS 'FURTHER TO THE RULING IN CAREY v HSBC WE BELIEVE THE (RECONSTITUTED) DOCUMENTS PROVIDED ARE SUFFIECIENT TO SATISY YOUR REQUEST AS PER s78...UNDER THE 1974 CCA WE ARE REQUIRED TO PROVIDE YOU WITH THE INFORMATION ON THE CURRENT STATE OF THE ACCOUNT. WE ARE NOT REQUIRED TO PROVIDE A FULL MONTH-BY-MONTH STATEMENT OF ACCOUNT SINCE THE OPENING...LEGAL PROCEEDINGS WILL BE ISSUED WITHIN 7 DAYS'.

 

XX/06/2010 - LETTER TO DRYDENS - REQUEST UNDER THE CIVIL PROCEDURES RULES. YOU HAVE INDICATED YOU WILL TAKE LEGAL ACTIN..TAKE NOTICE THERFORE UNDER CPR PRACTICE DIRECTION-PRE ACTION CONDUCT ANNEX A PARAs 4.2(1) AND 4.2(7) I REQUEST COPUES OF THE FOLLOWING: 1. TRUE COPY OF THE EXECUTED AGREEMENT 2. ANY FURTHER OR SUBSEQUENT NOTICES, TERMS & CONDITIONS RELIED UPON...SHOULD YOU ELECT TO IGNORE MY REQUEST...AND COMMENCE PROCEEDINGS...I SHALL REPEAT MY REQUEST UNDER CPR 31.14 OR CPR 18...'

 

XX/07/2010 - SAR TO CREATION - SUPPLY ME WITH ALL DATA YOU HOLD ON ME...

 

XX/07/2010 - FROM DRYDENS - 'WE BELIEVE WE HAVE ALREADY PROVIDED YOU WITH ALL THE DOCUMENTS REQUESTED IN OUR RESPONSES TO YOUR PREVIOUS LETTERS...'

 

XX/07/2010 - CLAIM ISSUE THROUGH NORTHAMPTON CCBC

 

 

 

I will now issue my request under CPR 31.14 for copies of all documents they intend to rely on at hearing

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I forgrt to add:

 

Drydens quote CAREY v HSBC. However, I am the Defendant in my case and I believe the findings in CAREY v HSBC were against the Claimant. My point being the burden of proof is on the cliamant.

 

M

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I forgrt to add:

 

Drydens quote CAREY v HSBC. However, I am the Defendant in my case and I believe the findings in CAREY v HSBC were against the Claimant. My point being the burden of proof is on the cliamant.

 

M

 

Can any expert comment on my draft letter below please? Should I also be applyong under different CPR?

 

PRIVATE & CONFIDENTIAL

 

Dear Sir / Madam,

 

Reference: Creation Financial Services-v-XXXX XXXXXXX Claim No. XXXXXXXX

 

CPR 31.14 Request

 

On the 19th July 2010 I received the Claim Form in this case issued by you out of the Northampton county court.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim:

 

1. the agreement.

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s), or a properly reconstituted version of the same, should be available at the hearing.

 

If the agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. Further, that any general conditions incorporated in the contract should also be attached. This document should clearly show particulars of interest which you claim at a rate of 36.9% per annum.

 

2. The Default Notice

 

As issued by the claimant.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within seven days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, they will have a right to possession of that document if it has been mentioned in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

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And I have written to Creation asking them to refund charges they have levied against the account:

 

 

 

 

Creation Financial Services Ltd

Chadwick House

Blenheim Court

SOLIHULL B91 2AA

PRIVATE & CONFIDENTIAL

 

Dear Sir / Madam,

 

ACCOUNT NUMBER: xxxx xxxx xxxx xxxx

 

I am writing to request that you repay all the ‘Over limit Fees’ and/or ‘Default Sum Fee – Late’ that have been applied to my account.

 

I do not believe the charges reflect the true cost to Creation Financial Services Ltd and are unfair and disproportionate. I am therefore requesting a refund based on the Unfair Terms in Consumer Contracts Regulations 1999.

 

This is supported by the Office of Fair Trading’s April 2006 statement into credit card charges, which noted that the level of charges at the time, and prior to that period, were unfair.

 

The charges total £xxx.00, plus as I believe I have been unlawfully deprived of the money I have calculated £xx.xx interest at the statutory rate, the amount the court will award.

 

I therefore ask that you repay me the full amount of £xxx.xx. I have attached a full schedule of the charges and interest with this document.

 

I look forward to a full response to this letter within 14 days.

 

Yours faithfully,

Edited by MONTY
incorreect data

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I have now acknowledged the claim and am now preparing my defence.

 

Drydens have written, providing copies of the 'reconstituted agreement' and default notice.

 

The reconstituted agreement is seriously flawed.

 

More as it happens....

 

M

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I have now acknowledged the claim and am now preparing my defence.

 

Drydens have written, providing copies of the 'reconstituted agreement' and default notice.

 

The reconstituted agreement is seriously flawed.

 

More as it happens....

 

M

 

I want to send the following to Drydens. However, I have some nervousness as they have provided what they believe to be reconstituted copy of the agreement and an example of the default notice. I know that the agreement is not a properly reconstituted agreement and can prove it.

 

What I do not want to do is anger the Court by submiting a 31.15 request when I have letters from Creation effectivley admitting they do not have the original agreement and I also hold a document that clearly shows the reconstituted document as flawed (I have not revealed my 'ace' yet as I am saving it for my defence).

 

This is my proposed letter under 31.15. Given the above, should I send it and risk antaginising the Court for possible misuse of CPR? - I already know Drydens/Creation can not provide:

 

Reference: Creation Financial Services-v-xxxx x xxxxxxxx Claim No. xxxxxxxx

 

CPR 31.15 Request

 

Please note the revised address above for all correspondence in this matter.

 

Further to the above case number, I have sought copies of the original documents that you mention in your POC, namely, 1)The Agreement , 2) Default Notice. Despite my requests under CPR 31.14 dated xx xxxx 2010 & xx xxxx 2010 respectively, you have failed to supply these documents.

 

For clarity, the documents you have provided in your letter of xx July 2010 do not represent properly reconstituted agreement or default notice.

 

In an attempt to again resolve this issue, I now require sight of the original executed agreement, as I am allowed to do under CPR 31.15.

 

You will note that under this rule, you must allow me inspection or the original document within 7 days of the date of this letter..

 

I look forward to your urgent response.

 

Yours faithfully

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Not quite sure what you mean by angering the court. You are allowed to use CPR31.15 to have sight of original documents.


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PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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I was contaced by Drydens who provided what they claim to be a reconstituted agreement and citing recent legal precedent saying they were not obliged to provide a copy of the original.

 

The precedent they are quoting is correct.. but only for s78 requests. If they are reconstructing then they will have to show that it has been done from original documents and I believe they still need the originals in court.


Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Not quite sure what you mean by angering the court. You are allowed to use CPR31.15 to have sight of original documents.

 

Thank you (again) Citizen B,

 

The reason I was hesitant was I have read the thread "CPR part 18 vs CPR 31.14..." and was concerned by the comments:

 

"Use the rules properly and you may face a discontinuance notice, use the rules WRONGLY and you will face summary judgement or a charging order or worst a order for sale".

 

If the Claimant has provided under 31.14 what they believe to be a properly reconstituted agreement would the court view my further request under 31.15 as pedantic? Should I not move straight to defence?

 

Monty

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The precedent they are quoting is correct.. but only for s78 requests. If they are reconstructing then they will have to show that it has been done from original documents and I believe they still need the originals in court.

 

Thank you,

 

I will submit my 31.15 request by registered post tomorrow.

 

Should I add a paragraph stating that their reconstituted documents fail to meet the requirements of the CPR 31.14 request?

 

M

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Thank you,

 

I will submit my 31.15 request by registered post tomorrow.

 

Should I add a paragraph stating that their reconstituted documents fail to meet the requirements of the CPR 31.14 request?

 

M

 

I have todat dispatched my CPR 31.15 to Drydens (see previous post for text) and I have written to Northampton CC the following:

 

County Court Bulk Centre

4th Floor

St Katherine’s House

21-27 St Katherine’s Street

Northampton NN1 2LH

 

 

PRIVATE & CONFIDENTIAL

 

Dear Sir / Madam,

 

Reference: Creation Financial Services-v-xxxx xxxxxxxx Claim No. xxxxxxxx

 

I have been attempting to obtain information from the claimants solicitors. To date they have ignored my CPR31.14 request and only sent me what they claim to be reconstituted copies of the original agreement and default notice.

 

In an attempt to resolve this matter I have today sent them the attached CPR31.15 request.

 

For information, please also find enclosed my letters to the claimant’s solicitors of xxth xxxx and xx xxxx 2010 (CPR requests).

 

Yours faithfully,

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You mention charges. Are they anywhere near the amount of the claim?

 

Was there any PPI?


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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You mention charges. Are they anywhere near the amount of the claim?

 

Was there any PPI?

 

Not sure I understand your question re 'charges'. No there was not any PPI

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And I have written to Creation asking them to refund charges they have levied against the account:

 

 

 

 

Creation Financial Services Ltd

Chadwick House

Blenheim Court

SOLIHULL B91 2AA

PRIVATE & CONFIDENTIAL

 

Dear Sir / Madam,

 

ACCOUNT NUMBER: xxxx xxxx xxxx xxxx

 

I am writing to request that you repay all the ‘Over limit Fees’ and/or ‘Default Sum Fee – Late’ that have been applied to my account.

 

I do not believe the charges reflect the true cost to Creation Financial Services Ltd and are unfair and disproportionate. I am therefore requesting a refund based on the Unfair Terms in Consumer Contracts Regulations 1999.

 

This is supported by the Office of Fair Trading’s April 2006 statement into credit card charges, which noted that the level of charges at the time, and prior to that period, were unfair.

 

The charges total £xxx.00, plus as I believe I have been unlawfully deprived of the money I have calculated £xx.xx interest at the statutory rate, the amount the court will award.

 

I therefore ask that you repay me the full amount of £xxx.xx. I have attached a full schedule of the charges and interest with this document.

 

I look forward to a full response to this letter within 14 days.

 

Yours faithfully,

 

Not sure I understand your question re 'charges'. No there was not any PPI

 

How much is Dryden's claim?

 

How much are the charges?


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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How much is Dryden's claim?

 

How much are the charges?

 

Approximately £3200 plus interest brings it up to £3700 plus court fee and solicitors costs total approx £3900

 

Of the original £3200 approximately £500 is made up of penalty charges and associated interest applied even after I placed the account in dispute for failing to comply with my S78 request.

 

I will post my draft defence later today. I would would be grateful of some help, advice, constructive criticism

 

Thanks

 

M

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In the Northampton County Court Claim number: XXXXXXXX

 

Between

 

Creation Financial Services Limited

Claimant

 

and

 

XX XXXX X XXXXXXX

 

Defendant

 

 

Defence

 

1. I, XXXX XXXXXX, am the defendant in this action, I am a Litigant in Person. I submit the following as my statement in defence of the claim brought against me by Creation Financial Services Limited.

2. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

3. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

4. Requests have been made via CPR 31.14 and CPR31.15 for a copy of the document on which the Claimant bases its claim; specifically, a copy of the agreement referred to in the claim. This has not been provided I am therefore unable to submit a fully particularised defence.

5. I respectfully request the court’s permission to submit an amended defence should the claimant

provide the document requested.

6. 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.

 

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

 

8. The Claimants' particulars of claim discloses no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with Civil Procedures Rules part 16. In this regard I wish to draw the courts attention to the following matters:

 

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

(b) A copy of the purported written agreement relating to account number that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

© The Claimant has provided what is claimed to be a reconstituted agreement. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. Also, The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. I put the Claimant to strict proof that a true copy of the original agreement cited exists.

(d) In the Particulars of Claim the Claimant has cited their right to interest at “36.90% per annum in accordance with the Agreement”. The alleged reconstituted agreement which the claimant has provided and purports to be a valid reconstruction of the original agreement makes no reference to interest at 36.90% per annum. I put the Claimant to strict proof that that an agreement as cited in the Particulars of Claim and which they are relying upon exists.

(e) The alleged monies due outlined in the Particulars of Claim cannot be accurate, as the amount claimed is at least partly comprised of unlawful charges plus additional Charges and interest added unlawfully whilst the alleged account was in dispute. Therefore, the arrears claimed cannot be accurate, as they are themselves calculated using a total that was itself inaccurate.

9. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the Claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The Request for Disclosure

 

10. Further to the case, on xx xxxxxx 2009 I made a request under s78 of the Consumer Credit Act 1974 for a true copy of a properly executed agreement. The Claimant failed to provide said documents and the alleged account entered in to default on the xth xxxxx 2009.

11. On xxth xxxx 2010 the Claimants solicitors, Dryden’s, wrote to me and provided what they purport to be a reconstituted agreement, again threatening legal action against me. On the xxth xxxxx 2010 I made a request under the Civil Procedure Rules (CPR) for 1) a true copy of any executed agreement, incorporating prescribed notices, terms and conditions applicable at the time the alleged agreement was executed and 2) any further or subsequent notices, terms and conditions relied upon.

12. On the xx of xxxx 2010 I wrote to the claimant making a Subject Access Request for copies of all data which they hold on me in relation to any matter and in any form and for any period of time. To date, no such information has been forthcoming. On xxth xxxxx 2010 Drydens wrote to me in response to my letter of xxth xxxx 2010, stating that they believe they have already provided me with the documents requested.

13. In response to the Claimants claim issued through the Northampton County Court, on the xx xxxx 2010 I lodged a CPR 31.14 request for copies of the original agreement and Default Notice cited in the Particulars of Claim (POC) and which should have attached to or served with the POC. On the xx xxxx 2010 Drydens responded with a further copy of an alleged reconstituted agreement and an example of a default notice. On the xth xxxxxx 2010 I wrote to Drydens in an attempt to again resolve the issue, requesting under CPR 31.15 for sight of any alleged, original agreement.

14. To date the Claimant has failed to provide a copy of the alleged agreement referred to in the Particulars of Claim.

15. The court’s attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules, I have not yet had the opportunity to asses if the documentation which the Claimant claims to be relying upon to bring this action.

The Alleged Agreement

16. On xxth xxxx 2010, I received a photocopy of an alleged reconstituted agreement which I believe the Claimant purports to be a valid and properly constituted agreement under the Consumer Credit Act 1974. The claimant believes this document sufficient under the ruling in Carey v HSBC to satisfy my request as per s78 of the Consumer Credit Act 1974.

17. The alleged reconstituted agreement does not meet the strict requirements of Carey v HSBC. The address provided in the alleged reconstituted agreement is not as it was at the time of the alleged execution of the agreement. The Claimant is therefore put to strict proof that such a compliant document exists.

18. Should the issue arise where the Claimant seeks 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 ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid."

 

Conclusion

 

19. The Defendant denies that there has been any failure to make payment in accordance with the alleged agreement. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

21. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the Claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

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

23. Alternatively, should the court order the Claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

Statement of Truth

 

I believe the above statement to be true and factual

 

Signed: __________________ ____________

 

 

Date:

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I should have added earlier the following POC submitted by Drydens:

 

The Claimant's claim is for monies due from the Defendant under Allders Storecard Agreement ("The Agreement") number xxxxxxxxxxxxxxxx issued on xx/xx/1999 regulated by the Consumer Credit Act 1974 ("The Act").

 

The Defendant breached the Agreement by failing to maintain payments in accordance with the Agreement and was served a notice under Section 87(1) of the Act.

 

The Defendant has failed to comply with the Default Notice and the Claimant claims the sum of xxxx.xx together with interest at the rate of 36.90% per annum in accordance with the Agreement on the sum due from xx/xx/2010 to xx/xx/2010 totalling xxx.xx and continuing until Judgement or payment at the daily rate of 3.26659.

 

Total sum claimed x,xxx.xx

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I should have added earlier the following POC submitted by Drydens:

 

The Claimant's claim is for monies due from the Defendant under Allders Storecard Agreement ("The Agreement") number xxxxxxxxxxxxxxxx issued on xx/xx/1999 regulated by the Consumer Credit Act 1974 ("The Act").

 

The Defendant breached the Agreement by failing to maintain payments in accordance with the Agreement and was served a notice under Section 87(1) of the Act.

 

The Defendant has failed to comply with the Default Notice and the Claimant claims the sum of xxxx.xx together with interest at the rate of 36.90% per annum in accordance with the Agreement on the sum due from xx/xx/2010 to xx/xx/2010 totalling xxx.xx and continuing until Judgement or payment at the daily rate of 3.26659.

 

Total sum claimed x,xxx.xx

 

I would uplaod a copy of the alleged agreement (actually it looks more like a template application), but the T & Cs are so poolrly reproduced they are unreadable without a magnifying glass

 

Monty

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I should have added earlier the following POC submitted by Drydens:

 

The Claimant's claim is for monies due from the Defendant under Allders Storecard Agreement ("The Agreement") number xxxxxxxxxxxxxxxx issued on xx/xx/1999 regulated by the Consumer Credit Act 1974 ("The Act").

 

The Defendant breached the Agreement by failing to maintain payments in accordance with the Agreement and was served a notice under Section 87(1) of the Act.

 

The Defendant has failed to comply with the Default Notice and the Claimant claims the sum of xxxx.xx together with interest at the rate of 36.90% per annum in accordance with the Agreement on the sum due from xx/xx/2010 to xx/xx/2010 totalling xxx.xx and continuing until Judgement or payment at the daily rate of 3.26659.

 

Total sum claimed x,xxx.xx

 

I do not know if it significant or not but the £ sign has been ommitted from figures in the POC. I may be being pedantic but with out the £ sign it could read 'pence', Although I would say in the 'Amount Claimed', 'Court Fee' section of the claim form (bottom right) it does indicate '£'

 

 

M

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I've asked for someone to check your defence over Monty.


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I've asked for someone to check your defence over Monty.

 

Thnaks Caro,

 

I have until midnight tonight

 

M

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Thnaks Caro,

 

I have until midnight tonight

 

M

 

I guess everyone is busy.

 

I had to precis my defence right down to fit into the MCOL proforma (122 lines) - I had forgetten about this!. I have today submitted the following:

 

1. I, xxxx xxxxxxx, am the defendant in this action, I am a Litigant in Person. I submit the following as my statement in defence of the claim brought against me by Creation Financial Services Limited.

2. The Particulars of Claim (POC) discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

3. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

4. Requests have been made via CPR 31.14 and CPR31.15 for a copy of the document on which the Claimant bases its claim specifically, a copy of the alleged agreement referred to in the claim. This has not been provided I am therefore unable to submit a fully particularised defence.

5. I respectfully request the court’s permission to submit an amended defence should the claimant provide the document requested.

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

7. The Defendant is embarrassed in pleading to the POC as it stands at present, inter alia:-

8. The Claimant's particulars of claim discloses no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with Civil Procedures Rules part 16. In this regard I wish to draw the courts attention to the following matters:

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

(b) A copy of the purported written agreement relating to the account number that the Claimant cites in the POC, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

© The Claimant has provided what is claimed to be a reconstituted agreement. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. Also, The section 78 copy must contain the name and address of the alleged debtor as it was at the time of the execution of the alleged agreement. I put the Claimant to strict proof that a true copy of any original agreement cited exists.

(d) In the POC the Claimant has cited their alleged right to interest at '36.90% per annum in accordance with the Agreement'. The alleged reconstituted agreement which the claimant has provided and purports to be a valid reconstruction of an original agreement makes no reference to interest at 36.90% per annum. I put the Claimant to strict proof that that an agreement as cited in the POC and which they are relying upon exists.

(e) The alleged monies due outlined in the POC cannot be accurate, as the amount claimed is at least partly comprised of unlawful charges plus additional charges and interest added unlawfully whilst the alleged account was in dispute. Therefore, the arrears claimed cannot be accurate, as they are themselves are calculated using a total that was itself inaccurate.

9. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the Claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

10. Further to the case, on xx xxxxxxx 2009 I made a request under s78 of the Consumer Credit Act 1974 for a true copy of a properly executed agreement. The Claimant failed to provide said documents and the alleged account entered in to default on the xth xxxxxx 2009.

11. On xx xxxx 2010 the Claimants wrote to me and provided what they purport to be a reconstituted agreement, again threatening legal action against me. On the xx xxxx 2010 I made a request under the Civil Procedure Rules (CPR) for 1) a true copy of any executed agreement, incorporating prescribed notices, terms and conditions applicable at the time the alleged agreement was executed and 2) any further or subsequent notices, terms and conditions relied upon.

12. On the xx of xxxxx 2010 I wrote to the claimant making a Subject Access Request for copies of all data which they hold on me in relation to any matter and in any form and for any period of time. To date, no such information has been forthcoming.

13. In response to the Claimants claim issued through the Northampton County Court, on the xx xxxx 2010 I lodged a CPR 31.14 request for copies of the alleged original agreement and Default Notice cited in the POC and which should have attached to or served with the POC.

14. On the 3xx xxxx 2010 the Claimant responded with a copy of an alleged reconstituted agreement and an example of a generic default notice.

15. On the xx xxxxx 2010 I wrote to the Claimant in an attempt to again resolve the issue, requesting under CPR 31.15 for sight of any alleged original agreement.

16. To date the Claimant has failed to provide a copy of the alleged agreement referred to in the POC.

17. The court’s attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules, I have not yet had the opportunity to asses if the documentation which the Claimant claims to be relying upon to bring this action.

18. On xx xxxx 2010, I received a photocopy of an alleged reconstituted agreement which the Claimant purports to be a valid and properly constituted agreement under the Consumer Credit Act 1974. The claimant believes this document sufficient under the ruling in Carey v HSBC to satisfy my request as per s78 of the Consumer Credit Act 1974.

19. The alleged reconstituted agreement does not meet the strict requirements of Carey v HSBC. The address provided in the alleged reconstituted agreement is not as it was at the time of the alleged execution of the agreement. The Claimant is therefore put to strict proof that such a compliant document exists.

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

24. Alternatively, should the court order the Claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

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Sorry Monty.

 

I'm not an expert but it looks fine to me and I like that you've suggested it be struck out.


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Sorry Monty.

 

I'm not an expert but it looks fine to me and I like that you've suggested it be struck out.

 

Thanks Caro,

 

I could not have done it without the excellent threads on this site. I am learning more each day. If it was not for this site I would have declared myself backrupt months ago (still a distinct possibility!). However, this site has taught me to challenge everything. As a result, the majority of my creditors have been found wanting.

 

m

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