Sigma claim form - M&S CC.- help

[Guest]

g

what did they send you before eg re this signed application form you mention? small print? are you sure the form had no terms on it?

Edited January 22, 2013 by Ford

[Gallahad]

Absolutely certain i can give you a photo bucket ref if you would like to see it.

G

[Guest]

up to you, can do. was just double checking

and what about the def notice, any more defects apart from the 14 days? (loyds dn's were often quite non compliant around that time)?

[Guest]

at first sight from what you have put;

would think #2 could be omitted/edited. the actual signed doc would need to have contained the prescribed terms to be propely executed.

and poss overall could need some more editing/expansion?

[Gallahad]

Here is the link ford the terms and conditions you see were what they sent in response to my CCA request in 2009 having signed the application in 2004.

Its not lloyds its M&S.

G

 

http://s683.beta.photobucket.com/use...tml?sort=6&o=8

[Guest]

oops, thought it was loyds! too many ongoing threads

 

bucket page link 'can't be found'!

[Gallahad]

Sorry Ford try this

http://s683.beta.photobucket.com/user/cupcake62/media/AC%20MandS/AC%20mands%20cca%20rec%20251009/ACMSCCArecd251009p9nonames.jpg.html?sort=6&o=8

G

[Guest]

was p10/11 with the form?

[Gallahad]

No they were not they are what M&S sent in 2009 following my CCA request. At the time of signing in store in 2004 I was given only one piece of paper with nothing on teh reverse as shown.

G

[Guest]

ok

re defence from what you have posted, poss suggestion put them to proof, eg as per cpr says.

perhaps including something along lines (IMO, at own risk, without prejudice, edit to suit) ?:

 

 

- claimant is put to proof that there was a signed doc that contained all of the prescribed terms as required by the consumer credit act, eg s 127 3,4 cc act. and as confirmed by the house of lords in Wilson etc. it is submitted that the application/agreement mentioned was not properly executed.

- the claimant has, to date, failed to comply with my reasonable and legitimate request under civ proc rule 31.14 despite giving them more time to allow for production and inspection.

- claimant is put to proof that they served a compliant default notice as per the DN Regs 1983, and therefore that they have complied with s87 cc act prior to enforcement. it is submitted that the claimant did not comply with the regs and therefore s87 as they did not allow 14 days etc.

- claimant is put to proof that, in any event, they have provided an accurate response prior to enforcement to my lawful request under s78 cc act, as confirmed in Kotecha v Phoenix.

- the PD/ rules that andy mentions re production of agreement

 

etc, as you say

 

see what andy, etc, say.

Edited January 23, 2013 by Ford

[Gallahad]

Thanks Ford I will await to see if Andy responds

G

[Guest]

the 'submissions' 'cause you have the docs that show that they are not compliant?

Edited January 23, 2013 by Ford

[Gallahad]

I have just discovered that sigma SPV do not hold a consumer Credit licence could anyone tell me if they should have this to be able to be assigned the debt and pursue payment.

G

[AndyOrch]

http://www.oft.gov.uk/OFTwork/credit-licensing/#.UP-84x0025I

[Gallahad]

Thanks Andy

G

[Gallahad]

This is my revised defence following suggestions

My Defence.

I neither admit or deny liability

The Defendant denies that the Claimant is entitled to the relief claimed or at all on the basis of numerous breaches of statutory requirements. The details of which are set out below.

 

Section 78 (1) Consumer Credit Act 1974*

 

The Claimant is in breach of its obligations under the Consumer Credit Act 1974 section 78(1). The Defendant made a request in writing for a copy of the executed credit agreement. The document provided did not comply with the requirements of the aforesaid section because*

 

1. the document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983

 

1.1 The terms and conditions applicable were not provided until the credit token was provided to the debtor. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974. Furthermore and without prejudice to the above, the Defendant avers that the terms and conditions produced are not incorporated into the contract. There is no reference apparent within the signed application form to any accompanying terms and conditions therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act.

 

1.2 no statement of account was adduced.

Accordingly s78 (6) Consumer Credit Act 1974 acts as a bar on enforcement and per*HFO services Limited vs Kirit Patel, Claim number*8QC52414, before His Honor Judge Platts,*the Claimants claim ought to be dismissed.

 

 

It is submitted that default notice served under section 87(1) of the consumer credit act 1974 failed to meet meet the regulations of the act which require 14 days to remedy the breach. Furthermore the Default notice served did not contain the Office of Fair Trading fact sheet as required by paragraph 10(A) of Schedule 2 of the Regulations. Accordingly the Default notice is bad and no enforcement is permitted. The Defendant relies of*Harrison vs. Link Financial Limited*[2011] EWHC B2 Mercantile to support this.

 

It is submitted the claimant failed to meet the regulations of Pre Action Protocol PD Annex B by failing to send a letter before action.

 

The claimant has, to date, failed to comply with my reasonable and legitimate request under civil procedure rule 31.14 despite giving them more time to allow for production and inspection of the documents mentioned in the POC.

 

I would respectfully request the court allow me the opportunity to amend my defence should the claimant eventually meet my CPR 31.14 request

 

The Claimant has not complied with s61,62, 78, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.

 

The documents disclosed as the agreement are not easily legible and therefore it is unsafe to grant judgment on the back of these documents

 

The agreement is irredeemably unenforceable and thus pursuant to s127 (3) the Claim should be dismissed and a declaration to this effect made by the Court pursuant to s142 (1) Consumer Credit Act 1974.

 

Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs to be summarily assessed on an indemnity basis.

[Guest]

wasnt sure about the 'cannot admit/deny liability' bit, although its in the cpr as a poss option. check it over with andy etc.

Edited January 24, 2013 by Ford

[Gallahad]

Yes ford I too am a little unsure about that part I hope Andy will look in.

G

[AndyOrch]

Remove it G will just annoy the DJ before he even gets to the first Paragraph.

 

Andy

[Gallahad]

Thanks Andy will do.

G

[Old Cogger]

neither admit or deny on paper, but as DJs usually ask the question did you have a credit card, your reply then can be as such, in my case the other persons solicitor jumped in and stated what I had said to him outside = exactly that, the DJ then moved on.

[Gallahad]

Sorry Mike don't quite grasp the answer am I to say just "as such" ?

G

[Old Cogger]

As such, = I neither admit or deny

[Gallahad]

I have now discovered a second DN sent several weeks before the other one but with the same faults should i include this in my defence and if so, how?

G

[Guest]

are they the same/duplicate? what is their particulars of claim?