Sigma claim form - M&S CC.- help

[Gallahad]

The same but not duplicate as the dates are different. POC are Monies due under a regulated agreement number XXXXXXXXX between M& S Financial Services PLC and the defendant the benefit of which was assigned to the claimant on 21/12 2011 The agreement terminated upon the defendants failure to comply with the terms of the agreement and the statutory notice of default served by M&S Financial Services PLC. The claimant seeks interest pursuant to section 69 of the county courts act 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 2.60.

G

[Guest]

when you say dates are different, presume you mean the issue date? and not dates re the 14 days? would think they would go on the latest dn, but no worries as have the same defects and they have not given a specific date re the dn issuedin their particulars. so, as is? prob no need for you to mention any specific dn?

did you get the notice of assignment?

as always, see what others say.

Edited January 26, 2013 by Ford

[Gallahad]

Yes Ford i do mean the issue date and the 14 days mention no dates anyway. Yes I did get a NOA but there were two NOAs in the same envelope one from stigma and the other supposedly from M&S but the M&S letterhead looks very suspicious to me. I am going to SAR M&S and see whether that confirms the NOA actually came from them. They have still not responded to my CPR 31.14 request even though my defence date is just 2 days away. They also wrote to my address with a different debtors name followed some weeks later with a letter apologising for the mistake so their sytems seem as shabby as their paperwork.

G

[Guest]

generally, a notice of assignment can come from either the 'or or the 'ee.

[Gallahad]

I understood it had to come from the OC thats why I think Sigma created the one supposedly from M&S

G

[Guest]

i think at that time, could come from either. maybe sigma weren't aware of the rules!

[Guest]

an andy excerpt in another thread re s127 (trust he won't mind!)

 

Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:

 

"The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

 

Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".

 

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.

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.

 

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.

 

 

also re para 7.3 of practice direction 16 as andy mentions

Edited January 25, 2013 by Ford

[Gallahad]

Thanks for that very useful although I don't quite grasp "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." As there can be no amount of credit show as it was a credit card for revolving credit.

G

[Guest]

yes, yours is re 'running account credit' ie a credit card cf a loan. good spot. edit to suit. your signed doc doesn't have all prescribed terms anyway.

have a look at para 7.3 also

Edited January 26, 2013 by Ford

[Gallahad]

Thanks Ford you are a star.

G

[icanonlytrytohelp]

Gallahad;4107402]Thank you Ford for that explanation. The problem I have is because the POC is not clear, I have had only one account with M&S which has been in dispute since 2009, and as such should not have been sold on. Without sight of the documents I cannot be sure this is the account I am defending.

G

 

Request a CCA (copy credit agreement) and a statement of the account, with a £1 ceque/P.O made payable to sigma. Until supplied the debt is un-enforceable. However if you believe this may be an account you've been disputing, and you want a quick response, call them with the account number (from witheld phone if you dont want a call back) If they then ask for security details- they have your account. They might have more information for you too. Also remember- if they have been sold debt falsely (ie. allready in dispute prior to purchase) they will need to prove this to "put back" to the seller and get their money back, so you will find them willing to help you. (provided you have proof) this is what I did.. ended up paying £30 INSTEAD OF £120 claimed and got default updated, with a note.added to explain had been in dispute. Yes it was a lot of work and effort, but worth it for sure... got a nice new cheap (for h.p) car now lol!

[Gallahad]

May I ask the nature of your dispute? I think that route is too late for me as I have to have my defence in by monday.

G

[DonkeyB]

Gallahad;4107402]Thank you Ford for that explanation. The problem I have is because the POC is not clear, I have had only one account with M&S which has been in dispute since 2009, and as such should not have been sold on. Without sight of the documents I cannot be sure this is the account I am defending.

G

 

Request a CCA (copy credit agreement) and a statement of the account, with a £1 ceque/P.O made payable to sigma. Until supplied the debt is un-enforceable. However if you believe this may be an account you've been disputing, and you want a quick response, call them with the account number (from witheld phone if you dont want a call back) If they then ask for security details- they have your account. They might have more information for you too. Also remember- if they have been sold debt falsely (ie. allready in dispute prior to purchase) they will need to prove this to "put back" to the seller and get their money back, so you will find them willing to help you. (provided you have proof) this is what I did.. ended up paying £30 INSTEAD OF £120 claimed and got default updated, with a note.added to explain had been in dispute. Yes it was a lot of work and effort, but worth it for sure... got a nice new cheap (for h.p) car now lol!

 

Even more random...

[Guest]

g

as db says, seems a random post there. a ghost in the machine?

double check my posts there for any input. post up your final draft for andy etc to have a look over. give 'em a shout to look in if poss?

Edited January 28, 2013 by Ford

[Gallahad]

Defence

The Claimants pleaded case is not sufficient for the purposes of CPR 16.The Claimants pleaded case is lacking the most basic facts and detail such as following pre action protocols, dates of demands made by the Claimant, date of default, date of service of notice of assignment,date of service of default notice and date of agreement, which has been alleged to be breached. This information is fundamental to the Claimants case, yet no details are offered or pleaded.*

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, so far, failed to permit inspection of documents mentioned in the statement of case in accordance with the defendants CPR 31.14 request and further follow up requests for compliance with the request. The defendant respectfully requests permission to make any amendments to the defence once disclosure takes place and seeks the award of costs against the claimant.

The Claimant is put to strict proof of the assignment to the Defendants account and will be required to produce documents at trial of the same.

No admissions are made in respect of the assignment.

The Claimant is put to strict proof of a valid default notice having been served upon the defendant and will be required to produce documents at trial of the same. No Admissions are made in respect of the default notice.

The Claimants are put to strict proof of termination and the defendant denies having received same and the claimant will be required to produce documents at trial of the same.

The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts)Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest. Interest being owed as claimed is denied.

The defendant admits entering in to an agreement with Marks & Spencer Financial services PLC but 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.

Section78 (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 from the original creditor. The document provided did not comply with the requirements of the aforesaid section because

The document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983, Accordingly s78 (6) Consumer Credit Act 1974 acts as a bar on enforcement and the Claimants claim ought to be dismissed.

Irredeemable Breaches of Consumer Credit Act precluding enforcement

Furthermore, there are irredeemable breaches of the Consumer Credit Act 1974. The particulars of the irredeemable breaches are as follows*

The Defendant avers that the application form, which he signed, was given to him at a checkout in a Marks & Spencer store. The application did not contain the prescribed terms which is a breach of s62 Consumer Credit Act 1974, and the agreement is improperly executed.

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 paragraphs, 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.

Default under s78 (1) Consumer Credit Act 1974*

(a)*the provision of the agreement alleged to have been breached*The Claimant pleads that the Defendant breached his contract. By virtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974 the Claimant is required to serve a default notice in the form prescribed by Consumer Credit Default Enforcement and Termination Notices Regulations 1983 (The Regulations). No notice compliant with the Consumer Credit Act was served therefore the Claimant is barred from terminating the agreement and demanding the sums claimed from the Defendant. In respect of the defects within the Default notice, the Defendant relies upon the following particulars of the breaches.

The Default notice served fails to specify the information required by Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations.*

The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 & Para 5 of the Regulations. For the avoidance of doubt the regulations require the wording specified by the schedule to be used without variation as laid out at Regulation 2(6) of the Regulations.

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.

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

Statement of Truth

I believe that the facts stated in this Defence are true.

Dated this xxxxxxxxx

To the court and

to the Claimant

[Gallahad]

Defence lodged but can anyone tell me what happens next?

G

[Guest]

oh ok. did you get andy etc to check over?

court will notify claimant of your defence. claimant then have 28 days to 'respond' to continue or not. if no response either way in that time, will prob be auto stayed. you should get some notice from the court.

Edited January 29, 2013 by Ford

[Gallahad]

Andy did not pick it up Ford and I ran out of time. thanks for all the help and Info. Do they have to pay to proceed from here?

G

[Guest]

.... Do they have to pay to proceed from here?

G

don't think so at that stage. maybe later, depending on what happens.

btw did they state an amount for their claim?

[Gallahad]

Yes they did at over 12K but as i live on pension credit and disability allowance with no equity in my house the words stone and blood come to mind.

G

[Guest]

if they 'continue', i think the next court fee for them would be re allocation, which would be fast track so more. unless they make any applications prior which would also attract a fee.

Edited January 29, 2013 by Ford

[cupcake68]

generally, a notice of assignment can come from either the 'or or the 'ee.

 

Can I just pick up on this please?

 

I was under the impression that a NoA had to come from the original creditor?

 

Thanks and good luck G

 

Cupcake

[DonkeyB]

Nope. Ford is correct. It can come from either.

[Gallahad]

Sigma have just confirmed that they intend to proceed with the claim and this is in spite of still not complying with my CPR request. Any suggestions as to what happens next?

G

[Guest]

would be the allocation questionnaire next?