Egg/Moorcroft/Bryancarter No CCA *** Claim Discontinued***

[AndyOrch]

Hi Marcander responding to your PM.

 

If you can just bear with me and I will get back to you shortly.

 

Regards

 

Andy

[AndyOrch]

Many thanks ims21.

 

Andy

[AndyOrch]

Hi Marc

 

Ok the problem we have is that you have maintained minimal payments to this debt and as so the question of whether it is a SB debt (you state they cant account for the payments) may be a gamble if they do come up with the relevant statements.( surely someone must keep a record of payments once it enters the the realms of the DCA?)

 

In light of the above are there any other factors which you could use as an alternative defence (apart from the obvious lack of CCA) PPI/Unfair charges/ have you ever received a DN or a NoA for this account?

 

I am aware that a defence must be submitted tomorrow at the latest come what may, if you could flesh the bones on the above points then we can see what can be done.

 

Regards

 

Andy

Edited March 15, 2012 by Andyorch

[AndyOrch]

No CCA is a defence (not sure its absolute these days) but as yours is pre 2007 then no reconstituted can be used for enforcement.I would simply base the defence on that then and the lack of DN.

 

Regards

 

Andy

[AndyOrch]

Thanks Andy, I do dispute the debt and it is a genuine dispute as having had no statements of account from either Moorcrop or eegg since default in 2001 I am entitled to dispute it. Also the amount claimed by eegg then moorcrop then barclays then arroow and bryan cartr his increased. decreased then increased again.

 

I shall file my defence tomorrow and keep the forum updated as it may help others, whatever happens.If you would like to post up first for the site to vet

 

I was hoping that the docs/evidence bryn cartr are sending me would have arrived before the time out for my defence but I am still interested in seeing what they have. Very little or nothing

 

One quick question, if we go to court or chambers should i prepare evidence on previous cases etc or do I point people in the direction of previous cases etc or will the court etc know all about the current legal position on no CCA no contract etc? Prepare WS and Skeleton Argument to supplement your defence (don't quote case law acts within your defence)

I have amassed quite a bit of info on "No CCA" debt situations and there are a number of problems along the way with Arrow/cartr now having the debt, such as a debt cannot be assigned while in dispute. Shouldn't but are invariably Never has a notice of assignment from EGGG or Moorcrrop.Thats a plus Interestingly, my CCA request resulted in a "cannot at this time supply a CCA" from Eggg via Moorcrop and not a "We don't have one" response. I suppose then I could also maintain that I am still waiting for my CCA request to be complied with or not. Neither as happened really.Then they remain in default until they do but then again this Muppet wont know that

 

Anyways we will see what we will see.He will discontinue as soon as a defence is submitted doesn't like hard work BC

 

Many thanks again,

 

M.

 

Regards

 

Andy

Edited March 15, 2012 by Andyorch

[AndyOrch]

Witness Statement

[AndyOrch]

Hi Marc you now need to draft it out into defence form.

 

Andy

[AndyOrch]

Apologies for chipping in, but no-one has mentioned the Notice of Sums in Arrears, Notice of Default Sums (if any have been charged)etc. Have these ever been received? If not then I would refer you to section 86D Consumer Credit Act 1974;

 

86DFailure to give notice of sums in arrearsE+W+S+N.I.

(1)This section applies where the creditor or owner under an agreement is under a duty to give the debtor or hirer notices under section 86B but fails to give him such a notice—

(a)within the period mentioned in subsection (2)(a) of that section; or

(b)within the period of six months beginning with the day after the day on which such a notice was last given to him.

(2)This section also applies where the creditor under an agreement is under a duty to give the debtor a notice under section 86C but fails to do so before the end of the period mentioned in subsection (2) of that section.

(3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

Be careful as I have only cut and pasted the important part, you should read the rest of the section.

 

Pre 2007 dbabylon so not retrospective.Thanks for chipping in though.

 

Regards

 

Andy

[AndyOrch]

Defences are drafted to refute the Claimants P.O.C nothing more nothing less, simply to refute and halt/question their claim. I will try to illustrate by advising what I write when drafting defences. First, I always write (or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has! Incorporating your previous claim within the defence can only add merit rather than a simple holding denial.Its just down to the way you draft it.

 

I will try to sort an example shortly

 

Andy

[AndyOrch]

The limit is 8050 characters online MCOL so more than ample to deal with their vague P.o.C

 

Example Defence

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

Accordingly, the inclusion of penalty charges in the purported Notice of Assignment, renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate. Consequently, the alleged assignment remains equitable and therefore conferred no legal right upon Claimants, to issue a Court claim in respect of monies allegedly owed.

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the XX XXXX XXXX, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the XX XXX XXXX. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

 

In response to the request, a letter dated the xx xxxx xxxx, with an accompanying document was received from the Claimants. It is denied that the document furnished is a copy of a credit agreement as averred by the Claimant. The Claimant has provided an application form which is not a credit agreement within the meaning of sections 60 and 61 of the Consumer Credit Act 1974. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78(6)(a) of the Consumer Credit Act 1974.

 

The Defendant further avers in respect of that which is denied, that the document furnished is a breach of section 59(1) of the Consumer Credit Act 1974.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produced a copy of a credit agreement in the requisite timescale or 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.

 

The Claimant, possessing no legal right claim monies allegedly owed, have acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

[AndyOrch]

Marc

 

Don't forget to print off your receipt of submission once transmitted.Oh and don't forget to include the 147 phone calls:wink:

 

Andy

[AndyOrch]

Hi Marc

 

The fact that the claim is stayed just means the claim rests.The Claimant does not have to pay to reissue he simply says he wants to proceed and pay the AQ fee.The matter then proceeds.

I think an application to strike out would be more prudent in dealing with this claim... but that is a choice you must make.

 

Regards

 

Andy

[AndyOrch]

A stay puts the claim on hold and no further action can be taken without the stay being lifted. It is however not unusual for stays to be lifted years after they were first imposed and without notice being given to the debtor prior to the event.

 

 

 

Just to clarify a few inaccuracies there:

 

They would have to make application on Notice to lift the stay so you would be served notice that the claimants intention was to lift the stay and you would have chance to respond/object.

 

Regards

 

Andy

[AndyOrch]

 

Nope. I've seen many stays be lifted without notice in advance.

 

Well I have dealt with plenty on Notice because most cases they also make application within the same said application for Summary Judgment

[AndyOrch]

Thank you Brig, not all answers can be gleened from the White Book nothing like experience:

Not that all this contradicting posting helps the poster.

 

Regards

 

Andy

[AndyOrch]

How too true:wink:

Edited April 25, 2012 by Andyorch

[AndyOrch]

Brig your inbox is full

 

Andy

[AndyOrch]

If the claim is left stayed then there is always the chance that it could be lifted and proceed. If it is struck out then you have a certain amount of protection that the claim is dead.

You would have an order of strike out not a judgment so its still not impossible that it may raise its head again by some other party unless of course its then statute barred.

 

Regards

 

Andy

[AndyOrch]

So the claim proceeds then marc and AQs have been released.Which AQ are you submitting the N149 or N150?

 

Regards

 

Andy

[AndyOrch]

its fairly easy to complete and you should prepare 3 copies (Court /Claimant/ File).

 

 

The claim has been defended so it has been transferred to your local court and your local court is now arranging to make some directions for the future conduct of the case.

 

This is where the aq comes in.

 

The AQ you have received can be completed by downloading Form N149 as a pdf and completing it in type, changing it around and only printing it when you're satisfied.

 

Here's what to say beginning first with the title and then on to Sections A, B etc in alphabetical order. You should also read the notes on page 4 and Form N512. Print this post off to help.

 

State:

 

The title

Your name

You're the Defendant

The name of the court

The claim number (found on the Claim Form you got)

The last date for filing (found on the paper AQ you were sent)

 

A

Tick 'Yes'

 

B

Tick 'No'

 

C

Tick 'Yes'

 

D

Answer 'One' (that'll be you)

 

E

Tick 'No' and ignore the remainder of section E

 

F

If you are going to be unable to attend a hearing at any time between say 1 October and 31 January, tick 'Yes' and identify those dates in the box adjacent to 'Yourself', otherwise tick 'No'

 

G

Say 'The Particulars of Claim provided by the Claimant are inadequate in order to fully appreciate the case I have to meet, in particular the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, its alleged assignment and the Claimant's entitlement to interest. By a letter dated ( ) I asked the Claimant to provide proper particualrs of the claim. A copy of the letter is attached. I have received no answer to my letter.

 

I propose the following directions:

 

1 Unless the Claimant shall have by (date) filed and served upon the Defendant fully particularised Particulars of Claim comprising but not limited to particulars of the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, its alleged assignment and the Claimant's entitlement to interest, the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

2 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and there shall be a stay of proceedings until (date) to enable the parties to settle using the small claims mediation service'

 

H

Tick 'No'

 

I

Sign, date and fill in your address at which you want documents about the case to be delivered.

 

Then return it to the court and wait a few weeks whilst it gets in front of a Judge who will decide whether to manage the case in the way you / I propose or by some other way.

 

 

 

You will need to edit to suit as that as been prepared for another claim and there as been a few alterations to the latest version of the AQ.Just post if you are unsure of any the questions.

 

Regards

 

Andy

[AndyOrch]

I would marc.

[AndyOrch]

I personally would not advocate making application to stay on the basis of disclosure mercander.Holding a trial in this way would appear as stalling for time, have you got to N170 stage yet?

 

Regards

 

Andy

[AndyOrch]

Well done marc

 

I will amend your thread to reflect the result.

 

Delighted for you, don't forget to consider wasted costs if Fast Track.

 

Regards

 

Andy

[AndyOrch]

Well done marc

 

I will amend your thread to reflect the result.

 

Delighted for you, don't forget to consider wasted costs if Fast Track.

 

Regards

 

Andy

 

Only if FT Marc.

 

Andy