N1 Claim Form received for old Welcome Finance debt

[AndyOrch]

As I stated in post #48 a defence can not be based on none disclosure of documents you can only either agree or disagree with their pleadings.You have not enough information to formalise a particularised defence and scant evidence disclosed to confirm that the Claimant is allowed to legally pursue you through litigation.

 

You must question as I have improvised above, not necessarily in legalese but in your own words.

 

Lets look at the facts they acquired this debt on the 02/12/11 probably in bulk purchase probably for peanuts.They have not informed you of a valid Notice of Assignment nor as the OC.They are not aware of the date of the agreement nor the nature of the breach, they have never allowed any recourse to agree a fresh payment plan. The OC as failed to inform you up to the assignment of the status of the debt by regular statements or issued regular Arrears Notices.The question of a valid DN has yet to be clarified or determined.

 

The Claimant has yet to respond to your CPR 31.14 and Section 77 request.

 

The agreement was sold/forced with PPI and undoubtedly must contain unfair charges if a breach has occurred.

 

Put the above into your own words and you will have a basis for defence.

 

 

The Fact that this must be approaching Statute Barred is the only conceivable reason for litigation.

 

Andy

[hmmh1978]

I am not sure when you signed this but I am assuming it was after 31 May 2005 for the purposes of the Consumer Credit (Agreements) (Amendment) Regulations which came into force on that day. This amended the Consumer Credit (Agreements) Regulations 1983 so I needed to draw a line on which regulation to work under. If you did sign it before the 31 May 2005, please let me know.

 

Seems that your agreement was unexecuted when you received it and then when you signed it, it was still unexecuted. It became executed once you sent it back to the claimant and they signed it and communicated it to you.

 

This is termed a bilateral credit agreement.

 

You are going to have to divulge that you did sign an agreement around that time for some of the finer aspects of the defence to work.

 

These are my ramblings that I wrote straight down with no filtering... Some aspects, especially the ones regarding enforceability need to be double checked (no typos) but I am sure the others will correct something if they see it as wrong. Normally, the defence would be cut down to only show the strongest hand however I tried to make it inclusive so the other forum regulars can help and see the bigger picture in case I am missing something.

 

There are some points missing such as:

 

1.) Default notice;

2.) PPI set off;

 

I trust the other knowledgeable regulars here will help you with the rest.

 

Good luck.

 

DEFENCE:

 

1. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 1 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant.

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

6. On the alternative, the Agreement referred to in paragraph 1 was improperly executed contrary to Section 61(1)(a) of the Consumer Credit Act 1974 ('the Act').

 

(a) The only document which was signed by the Defendant in or around the date that the Claimant alleges that the Defendant entered into an Agreement with was an Agreement with Progressive Financial Services Limited trading as Welcome Financial Services ('the Creditor').

(b) The Agreement mentioned in paragraph (a) of these Particulars, stated that the Total Amount of Credit was £2451.13, consisting of a cash loan of £2000.00 and the premium for a policy of Payment Protection Insurance ('the PPI') of £451.13.

© The Defendant was required to purchase the PPI as a condition of the Creditor entering into the Agreement: on or around xxx MONTH 2005, when the Defendant telephoned the number he had seen in an advertisement for the Creditor's loans.

(d) The said premium for the PPI was an item entering into the total charge for credit as determined in accordance with the Consumer Credit (Total Charge for Credit) Regulations 1980, and was therefore, by reason of Section 9(4) of the Act, not to be treated as part of the credit even though time was to be allowed to its payment.

 

7. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) of the Act.

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Edited June 7, 2012 by hmmh1978

[Fars]

Thank you both for drafting a direction for me to follow with my defence. You've helped me so much, and I am incredibly grateful.

 

I am not sure when you signed this but I am assuming it was after 31 May 2005 for the purposes of the Consumer Credit (Agreements) (Amendment) Regulations which came into force on that day. This amended the Consumer Credit (Agreements) Regulations 1983 so I needed to draw a line on which regulation to work under. If you did sign it before the 31 May 2005, please let me know.

You're correct, it was after the above date

 

Seems that your agreement was unexecuted when you received it and then when you signed it, it was still unexecuted. It became executed once you sent it back to the claimant and they signed it and communicated it to you.

 

This is termed a bilateral credit agreement.

Understood, that makes sense.

 

You are going to have to divulge that you did sign an agreement around that time for some of the finer aspects of the defence to work.

Understood, do I need to add anything to that affect in the defence or does 6(a) cover that?

 

These are my ramblings that I wrote straight down with no filtering... Some aspects, especially the ones regarding enforceability need to be double checked (no typos) but I am sure the others will correct something if they see it as wrong. Normally, the defence would be cut down to only show the strongest hand however I tried to make it inclusive so the other forum regulars can help and see the bigger picture in case I am missing something.

 

There are some points missing such as:

 

1.) Default notice;

2.) PPI set off;

 

I trust the other knowledgeable regulars here will help you with the rest.

 

Good luck.

 

The plan is to get the defence filed online via mcol today or tonight at the latest, so any further insight before then is very welcome.

 

Thanks again

Edited June 8, 2012 by Fars

[hmmh1978]

It is covered by 6(a).