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Gallahad

Sigma claim form - M&S CC.- help

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Having agreed an extension date for my defence as the 28th January and informed the court. There are now only 13 days left, and they have still failed to comply with my CPR request, I do not have the 14 days allowed under CPR rules to consider my defence. I would be grateful to any suggestions on what course of action should I now pursue.

G

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If the summons was dated 5th Dec 2012 you have already had 56 days...not sure what you are requesting G?

 

Andy


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Hi Andy, Sigma initially agreed to an extension of 14 days from when they complied with my CPR. I then pointed out to them that that CPR rule 15.5 only allowed an extension of 28 days. They then agreed and stated the extension date to be 28th January and I informed the court by email. I was under the impression that my CPR 31.14 request had to be complied with in a time span that allowed me 14 days to consider my defence. I hope that clarifies.

G

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Yes and no the claimant is not at liberty to respond to anything until further into the process...CPR requests are just that...... Civil Procedure Rules...... but not mandatory.

 

Regards

 

Andy


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So how can I compile my defence without sight of the documents on which their claim is based?

G

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Well that's were so many go wrong Gallahad...a defence is not based on undisclosed documentation alone there must be a dispute or reason as to why you defaulted in the first place.Agreed documentation can clarify total claimed/due process followed etc but it wont be accepted as a defence with merit purely for the reason of " they did not respond to my CPR request therefore that is my defence"

 

Don't ask for documentation and pray there may be faults with it or they cant disclose it.......then submit a defence based on that fact.Most DJ will not accept it..the defence has no merit.

 

Balance the defence with requirements to quantify and check and justified dispute.If you don't it will be obvious you are either using none disclosure or looking for a legal loophole to avoid a debt you owe.

 

Regards

 

Andy


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Thanks Andy I take on board what you are saying I am basing my defence on the agreement supplied to my CCA request did not contain the prescribed terms required for a CCA agreement. M&S have insisted that I was handed the terms and conditions at the time of signing. however I know i was only ever hand the one document. In addition I have never received a termination notice. These are the reasons I need copies of the documents they are basing the claim on.

G

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Thanks Andy I take on board what you are saying I am basing my defence on the agreement supplied to my CCA request did not contain the prescribed terms required for a CCA agreement. M&S have insisted that I was handed the terms and conditions at the time of signing. however I know i was only ever hand the one document. In addition I have never received a termination notice. These are the reasons I need copies of the documents they are basing the claim on.

G

 

 

This is what you have to base your defence on then Gallahad.

 

You need to assert that your s78 request was not fully complied with and the documents produced have no prescribed terms as per the Consumer Credit Act 1974.

 

That despite their assertions that you were provided with these at the time of signing, you deny this.

 

I cant remember if there was a Default Notice and if there were any problems with that ?


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Thanks CB yes there were problems with the default notice as it was dated 23/6/2009 and received on the 1st July 2009, it did not state a date for remedy but contained the wording " In order to remedy the breach, you must pay the total arrears of £xxxxxx within 14 days of the date of this notice". This only me only 6 days to remedy whereas I believe i was entitled to 14 days. I have retained the envelope in which this was sent. As I see it my defence has 3 prongs

1. No prescribed terms as per the requirements of the CCA act 1974.

2. A faulty default notice.

3. No termination notice.

As this obviously bears out my need for them to to comply with my CPR 31.14 request.

G

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that yes that DN is invalid

 

read this:

 

 

opps was the wrong link

 

now ok


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Hi Andy, Sigma initially agreed to an extension of 14 days from when they complied with my CPR. I then pointed out to them that that CPR rule 15.5 only allowed an extension of 28 days. They then agreed and stated the extension date to be 28th January and I informed the court by email. I was under the impression that my CPR 31.14 request had to be complied with in a time span that allowed me 14 days to consider my defence. I hope that clarifies.

G

 

afaik, there is no such specified 14 day time span in 31.14 (apart from the 7 days inspection 31.15). cpr 15.5 allows for an extension to the def deadline extension to be agreed up to 28 days, something which is offered when using the 'template' 31.14 letter should they want more time.

the request in that letter for furnishing 14 days before any agreed new def date is a request re reasonableness in the circumstances (eg after the waiver of the 7 days). (imo, the 31.14 letter should be more specific say something along lines of; if want/need more than 7 days, will agree a further 14 days from then, provided agree def extension to xx/xx/xx (28 days), and to confirm etc)

they could turn up at court with the docs (but if they do, could then ask J for an adjournment to consider).

but, any failures by a resourceful claimant to comply with the rules should be pointed out at some point to the court and should be taken into account by the J, particularly re any costs, (and poss applied on depending on its nature), though as andy says failure of 31.14 compliance is not really a defence in itself/on its own.

Edited by Ford

IMO

:-):rant:

 

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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

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see if they come up with anything up to near your new def deadline, 28th? if not already, could double check with court re that date just to be sure?

otherwise, pretty much as per #23, as citb and dx have also mentioned? plus anything else?

have a read around similar threads re 31.14 and the types of defences

Edited by Ford

IMO

:-):rant:

 

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Thanks Ford thats as I see it too, although its a shame courts cannot judge on shabby practices.

G

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the account seems likely to be yours from what you say.

but, as mentioned, there are the statutory requirements mentioned anyway that claimant should satisfy before any court enforcement.

Edited by Ford

IMO

:-):rant:

 

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http://www.bailii.org/ew/cases/EWCA/Civ/2008/59.html

 

The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman's second point, that the mention of a document within CPR 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?

 

 

Backed up by http://www.bailii.org/ew/cases/EWHC/TCC/2009/1033.html

 

M1

  • Haha 1

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Hi Mi, I must confess I have never considered coyness as a virtue but i do consider my rapidly depleting grey cells a handicap. My brain has now entered the confusion zone and I will need this coming weekend to try to absorb and fully evaluate my current position. I do appreciate all the help given and time spent by the forum members thank you all.

G

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Having been evacuated from my home for 3 days due to a serious gas leak and risk of explosion I have not had the time I would have liked but here is my defence which must be entered this week.

 

1. The account was in serious dispute with M&S and should not have been sold on while in dispute. ( I believe this is against the guidelines of either the OFT or FSA would apreciate any reference to this)

 

2. M & S failed to fulfill my request under statutory CCA S127 request.

 

3. The default notice served under section 87(1) of the consumer credit act 1974 failed to meet meet the requirements of the act stipulating 14 days to remedy the breach.

 

4. No notice of termination was sent.

 

5. I am sure I was not given a copy of any terms and conditions at the time of signing the agreement in the store.

 

I would greatly appreciate any advice on the wording of the above.

G

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Needs a little work Gallahad.

 

Point 1. wont work...disputed debts are the major reason for assignment.

Point 2 Good that's valid defence

Point 3 Good that's valid defence

Point 4 wont work most DN,s act as the TN very rare companies issue a separate TN (excluding HP)

Point 5 comes under point 2 but hardly a show stopper when used as a defence.

 

Regards

 

Andy


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Thanks Andy, they also failed to send a letter before action is that worth including?

G

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Absolutely if they have not complied with Pre Action Protocol PD Annex B

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

 

Regards

 

Andy


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G

and, when expanding on those points, could if applicable add where appropriate a short line about them failing to comply with your reasonable and legitimate request for the required docs under cpr 31.14, despite giving them more time.

Edited by Ford

IMO

:-):rant:

 

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The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned...
plus 'Thus, in brief: the definition of "document" is very broad...' etc

 

in general, that case #66 could be particularly useful as sometimes claimants say in response to 31.14 that they have not specifically mentioned or referred to a particular doc/agreement etc :)


IMO

:-):rant:

 

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My Defence.

 

1. M& S failed to supply a copy of an executed agreement (application form) that contained the prescribed terms as required under CCA act 1974 section S.*127 (3), made under a*statutory CCA S.78 request.

 

2. M& S stated that a set of terms and conditions applicable to the agreement (application form) were supplied at the time the agreement was signed, I deny that this happened as I have a very clear recollection of the day and the process. In addition the signed copy of the agreement (application form) they did supply included the wording “*Your right to cancel Once you have signed this agreement, you will have, for a short time a right to cancel. Exact details of how and when you can do this will be sent to you by post by the creditor.*“

 

3. The default notice served under section 87(1) of the consumer credit act 1974 failed to meet meet the requirements of the act stipulating 14 days to remedy the breach.

 

4. The claimant failed to meet the requirements of Pre Action Protocol PD Annex B by failing to send a letter before action.

 

5. The claimant failed to respond to my request for documents under a CPR 31.14 mentioned in their POC having been given an extension of 28 days to do so.

 

6. The small print presented on the signed application form (agreement) is not clearly legible.

 

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

 

Any comments or suggestions would be much appreciated.

G

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