Claimform/ Link/GE capital/woodchester

[pt2537]

are you looking for someone to plead the Defence for you?

 

Im afraid that is something that we cant really do here,

[elrib]

No I dont think so,

 

I was just looking for some help on how to put it together, or would that be classed as Pleading the defence, sorry if I sound a bit daft but learning as I go along. I have seen some defence,s on here and have a couple of templates,

[pt2537]

a small tip,

 

avoid using the "embarrassed defences" that appear on here

[elrib]

Thanks pt I was going to stay clear of that, Had a good read of your thread on it.

 

My defence is simple I guess, Never sign a agreement and can prove it, .

Where I am stuck is the other document on the poc Not got them so not sure how I can defend, I am thinking No sign agreement then they all must be faulty or void.

Rgds

Elrib

[pt2537]

It is accepted that the Defendant recieved the benefit of a loan from XXXXXXXX, however, it is denied that the Claimant is entitled to the relief sought for the following reasons

 

The loan was regulated by the Consumer Credit Act 1974.

 

It was fixed sum restricted use credit pursuant to s11 Consumer Credit Act 1974

 

It was a debtor creditor supplier agreement pursuant to s12 Consumer Credit Act 1974

 

Accordingly and pursuant to s61 Consumer Credit Act 1974 a regulated agreement is not properly executed unless a document in the prescribed form containing the prescribed terms is signed by the Debtor.

 

By s65(1) Consumer Credit Act 1974 in improperly executed agreement is only enforceable by order of the Court subject ot the exceptions of s127(3) Consumer Credit Act 1974

 

By s127(3) CCA 1974 the Court cannot make an enforcement order unless there was a document signed by the debtor containing the prescribed terms as found within schedule 6 Consumer Credit Agreements Regulations 1983.

 

The Defendant avers that on XXXXXXXXXX the Defendant was granted a loan of £ by the XXXXXXXXXXXX

 

The Defendant will say that on the the Defendant recieved through the post a loan agreement. The agreement had three copies, one was for the Defendant to retain and the other two were to be signed and returned to the Creditor.

 

The Defendant never signed the agreement nor did the Defendant return the document to the creditor. The Defendant has the three copies in his possession and can produce the same in evidence for the Court.

 

Accordingly the Defendant will say that there never was an agreement signed by the debtor as required by s61(1) (A) Consumer Credit Act 1974 and accordingly by virtue of s127(3) the Claimant cannot enforce the agreement.

 

Accordingly the Defendant denies the Claimant is entitled to the relief claimed or at all.

 

If i were going to defend this, i may use something like the above, properly numbered and set in paragraphs etc

 

I would say though, can you please confirm when the agreement was taken out? was it before 6th April 2007?

[pt2537]

obviously the name of the creditor, the dates and such would also need entering

[frettful38]

After reading the above in my opinion if the creditor had any sense then they would pull out asap, but nowadays sense seems to have taken a whole new meaning.

 

Very well put pt, elrib you are lucky to be receiving great advice from pt.

[pt2537]

that was pretty much the substance of the pleadings in another case with link financial we did, but for the PPI issue, and we succeeded in defending.

 

If there never was a signed agreement then they are dead in the water, you dont even need to go for any issues over the default notice etc

 

In fact id even be tempted to consider summary judgment

 

But if i were asked to advise id want more facts and documents before id say SJ

[elrib]

Thanks pt,

 

Agreement was taken out in early 2005.

 

Would I need to mention the default notice, or not do to the fact that there was no sign agreement.

 

Also just received a letter from Link telling me that they have now request all documents from the original vendor, this was in responds to my CPR31.14 request. not that they are going to get much.

You would have thought that they should have had the documents before starting Court action.

[pt2537]

well, fact is, if you can show like you say you can, that you have the original docs and never signed one, then you need no more than that

 

What was the amount of credit out of curiosity

[Drowning but not sunk...]

Would this case not be very similar to the case of Ramjet?

http://www.consumeractiongroup.co.uk/forum/showthread.php?233221-Ramjet-v-NatWest-\Shoosmiths-Court-action(1-Viewing)-nbsp

 

No agreement so on- he lost but you may be able to get some info from his thread on what not to do and how to get them. Good luck.

 

Wish I had pt2537 helping me on my cases your in good hands by the look of things..

[pt2537]

Each case turns on its own facts

 

Maybe Ramjet coouldnt show that he never signed an agreement, whereas on balance it seems there is evidence here that supports the case

[elrib]

Claim is for £5400 this include 190.00 for court cost, I am working out of the country at this time so can,t check on the original amount of loan,

 

Thanks again for your help PT.

[pt2537]

If the original loan was excess of 25K then you are stuck,

[elrib]

Original loan was for around 7k but will check with wife at home. definitely not in excess of 25k.

[pt2537]

I have a couple of recent judgments against Link, if you put in a decent defence, im sure they will not want to go to trial with this. Especially given that the last time out with them in court, it costs em £17K

 

With the case as it seems to be, i would say that you have a real decent chance of winning.

 

If you need any help with the Defence then please shout and if im around i will see what i can do to help out.

[elrib]

Thanks alot PT

 

Back home now. spoke to the court have to have defence in by 23rd nov.

 

My defence will be on the lines you have aready mention, I see you mention SJ is that worth a look at, or does that complicate things.

I will wright the defence up, and would it be worth me posting it on here for you to take a look at or could that give info to other side as I hear that they do look on these site.

Ones again thank you for your help.

Elrib

[pt2537]

it is difficult to advise on these forums

 

The reasons is they do read them, and you show your hand too early.

 

Also, there are tricks i use, which have lead to judgments in our clients favour which i do not share on these forums but if you look at people like beechcomber60 or Delphi101 or Klg80s threads you will see that they work very well

 

Many of the arguments run on these forums are very narrow and dont explore the issues correctly.

 

In one case, the experts view on here was the agreement was enforceable and the client should settle.

 

We took the matter to trial and the Circuit Judge who sits as a judge of the High Court agreed with us and declared the agreement unenforceable on all 5 points which we defended on.

 

And this was post Carey v HSBC Bank PLC so it shows the arguments we took to court worked and when you read the judgment it becomes very clear the reasons why. I can say that the arguments run in that case do not appear on these forums anywhere.

 

The draft i posted will suffice with a few tweeks, but as for summary judgment, it is a whole different ball game and one that is very risky if you get it wrong

[elrib]

Thanks pt

 

I have taken your draft and tweek it abit, will send that in and wait and see what comes back, will post up as things move on.also will have a read of the Carey v HSBC judgment.

 

Elrib

[pt2537]

the most important case you should read, is Wilson vs First County Trust

 

That is the authority for the proposition that no signed agreement leads to fatal unenforceability

 

Good luck,

 

it is not easy as a litigant in person, so do your research read read and read again and id advise you to look at buying Blackstones civil practice or the White Book, have a look on ebay

 

These books can be the difference between winning and losing

 

I have all of them , and the Civil Court Practice too.

[elrib]

I have had a good read of Wilson v The first county trust. Will have to read a few more times, would it be a good idea to refer to that case in my defence.

e.

[pt2537]

no

 

you do not need case law in your defence, it is not necessary,

 

The Defence should deal with the facts of the matter in question, and that is all, case law is not necessary unless it setsout the legal principles etc,

 

but in this case you simply need to say

 

this is what happened.

 

This is the consequence of what happened.

 

This is what the law says must happen as a result of the consequences

[elrib]

Just an update.

Case was stayed by the Northampton court end of Dec 2010.

Not sure if I need to do anything now but wait to see if Link come back.

Again thanks for your help pt2537.

E.

[DonkeyB]

Your choice is to sit on it, or if you believe your case is strong enough, apply for a strike out.

[elrib]

Thanks DonkeyB

 

I do have all the original agreement not sign, so not sure if thats strong enough, also what would it intail to get a strike out.