lloyds claimform - old tsb debt - Lost Case - agreed variation order - but DCa's keep still chasing to up agreed payments

[AndyOrch]

Have you recieved a copy of the Claimants AQ Dora? Very useful in giving you an idea what the Claimants are preparing next ie applications/directions.

 

Regards

 

Andy

[AndyOrch]

They should provide you with a copy and you them same as courtesy, hence file and serve.Ask the Court to provide a copy to you, you are entitled to see what it contains,wouldnt want you to get any suprises.

 

Regards

 

Andy

[AndyOrch]

Hi Dora

 

Anthing else in the DJ order or just allocation? Disclosure/Exchange/ Witness Statements?

 

 

Regards

 

Andy

[AndyOrch]

Ok keep an eye on when you have to submit/ exchange etc.Dont miss the timeframes.

 

Andy

[AndyOrch]

Dora Shirei

 

Look at the Notice of Allocation recieved.

 

1.The Claim is allocated to the XXXXXXX Track

 

2 Disclosure of documents shall be dealt with as follows:

 

A)The parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4.00pm on xx xxx xxx

B)Any request to inspect the original of a copy shall be made by 4.00pm on the xxx xxxxx xxxxx

 

The disclosure list is referred to as the N265

You can download it here as a PDF and complete on screen ready to print

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts

 

On page 2 of your notice will be directions on serving Witness Statements

 

Dont worry about this part for now but check the dates required to serve.

 

Regards

 

Andy

Edited July 26, 2009 by Andyorch

[AndyOrch]

Hi Dora

 

You dont have to serve your Disclosure list till 24th August so you have plenty of time.Calm down and relax.

Bump your thread in 2/3 weeks and I will go through what we need to disclose.Always wait till the Claimant serves theirs first it gives invaluable information on what they have and dont have,never show all your hand first in litigation;)

 

Regards

 

Andy

[AndyOrch]

If you can post up Kathy less your personal details.

 

Regards

 

Andy

[AndyOrch]

Consumer Dude

 

Yo need to start your own thread on your matter were it will get attention.

 

Regards

 

Andy

[AndyOrch]

Dorabell, have a read of this, let me know what you think

 

 

In the Northampton County Court

 

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxx - Claimant

 

 

 

 

 

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

 

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

 

4. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the 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

 

a) A copy of the purported written agreement 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.

 

b) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

c) Item 2 in the claimants particulars of claim cites clauses in the alleged agreement

it is averred that such a document itself containing such clauses and complying with the Consumer Credit Act 1974 s60 (1) does not exist the defendant therefore denies that any sum or interest thereon is due to the claimant. And puts the claimant to strict proof of these claims

 

5. 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 relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . xxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms.

 

 

10.The Application form supplied is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

 

 

 

 

 

 

The Request for Disclosure

 

11. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

12. The claimant has replied without complying with my request (letter attached marked Exhibit B)

 

13. The courts attention is drawn to the fact that the 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 even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13. it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

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

 

17. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

18. The claimant is therefore put to strict proof that such a compliant document exists

 

 

19. 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;"

 

The Need for a Default notice

 

20. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

21. Notwithstanding point 20, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

22. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

23. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. 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.

 

24. 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

 

25. 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.

 

26. Alternatively, Should the court order the claimant to produce the nessecary 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 .....................xxxxxxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

 

Just Bumping CCM Defence up Kathy

 

Regards

 

Andy

[AndyOrch]

Nothing in partic there Kathy to concern yourself of course they refute your points but take note of the points noted.Not often you get a response from the Claimant consider yourself privilged;)

 

Regards

 

Andy

[AndyOrch]

Not partic you will have very litle to disclose,just keep an eye on the DJ Order dates when to serve yours on the Claimant and theirs on you.The Claimants Disclosure is more predominant than yours and as such you should wait till sight of theirs to lead you in the way you disclose.Have you had chance to look at the N265 its quite easy to complete,you the Defendent will only use the first section as opposed to the Claimant who may wish to hide docs in the confidentiality section or that they no longer have possession,hence my advise to wait untill inspection of theirs.

 

Some interesting reading for you to gen up on:-

 

PRACTICE DIRECTION – DISCLOSURE AND INSPECTION - Ministry of Justice

 

Regards

 

Andy

Edited August 8, 2009 by Andyorch

[AndyOrch]

Did start a thread but appears to have got lost lost somewhere. Am happy if some one wants to move this to its proper place. Could any one help me get back on track.. Thank you..

 

Try this one Claim form from Northampton (1 2)

 

Regards

 

Andy;)

[AndyOrch]

Hi andy i need your help please if you are around i have a week to disclosure of documents by 4pm thanks:)

 

 

Hi Dora

 

Ok you have downloaded the Disclosure form.As stated before you the Defendent will have little to disclose apart from for example CCa request, Cpr request,letters of complaint/payment plan anything refered to in your Defence,Draft Directions.Finalise a list of what you think you will disclose and i will go through what is relevent or not and in the meantime post up if you receive the Claimants Disclosure list.

 

Regards

 

Andy

[AndyOrch]

ok andy thanks

list

cca request, cpr request, copy of the last statement showing nil balance,

letter asking tsb to reduce the payments, tsb letter were they are refusing to accept reduced payments, a letter from AIC saying they are collecting on behalf off there client tsb letters from SCM threatning court action, thats all i have if that helps:)i still not received anything from the claimants

 

 

Thats fine Dora if thats all you have thats all you disclose.Did you get a response to your CCA and CPR requests?If so and they didnt comply then throw that in also.Did you not make any Directions?

 

List the above in sequence order and then print it off, copy to court by the date, copy to Sols at the very last moment but on time.

What date are the Claimants to provide theirs by?

 

Regards

 

Andy

[AndyOrch]

Ok include them also and your Directions.

 

Andy

[AndyOrch]

Just the last one Dora.

[AndyOrch]

You can disclose anything that you think will help you in destroying the Claimants case.And visa versa you can request a copy off theirs of anything you have not seen or need.

[AndyOrch]

Im going to busy then lol do i also put the copy off the n265 in

 

Dora the N265 is the actual Disclosure list that you are now preparing just list what you think will hurt them or what they wont want the court to see.

 

 

Andy

[AndyOrch]

so am I after your questions:confused: you do make me smile though:)

 

 

Regards

 

Andy

[AndyOrch]

Can you post up the Application Dora and the Claimants WS in support of the application (if any) remove all personal identifiable info first.

 

Regards

 

Andy

[AndyOrch]

Ok if the Claimant has made Application for SJ then you should have been sent a copy of the N244 along with any supporting documentation ie WS.

You will then prepare a WS from yourself in objection to the application and will submit this not less than 7 days of the hearing,so we have plenty of time to retrieve said application.

Ring the CC involved and state further to the DJ order recieved today the Claimant or the Court have not forwarded you a copy and request it.Im sure the CC and Claimants have forgotten what File and serve means these days:confused:

 

Regards

 

Andy

[AndyOrch]

Yes Dora keep to your dates.The SJ application is a seperate issue which will run along side the case procedure.

 

Andy

[AndyOrch]

Knowledge is power Dora

 

 

Andy

[AndyOrch]

I am i need off help with this above

 

 

Whats the problem?

 

Andy

[AndyOrch]

Ok get the N265 on your screen and type in under the Section headed I have control of the documents etc etc I do not object to you inspecting them.The rest leave blank apart from the Disclosure statement complete that section also

 

1 Correspondence to Claimant dated xxxxxx

2 Response recieved from Claimant dated xxxxxx

3 CCA sec78 request dated XXXXX

4 Response to sec78 Request dated xxxx

 

Etc etc put them in story order of how you arrived at the Summons.Dont include Court documentation or anything the Claimant has already got.

 

 

Andy