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Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***


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No the CCA1974 is the Credit Consumer Act...the CPR is the Civil Procedure Rules which guides litigation process.

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So as long as the process of mediation has been effectively tried (even if failed) it would be seen as a positive aspect by the DJ?

 

I have emailed the following (what a cop out!!)

 

Good morning XXX

 

I am unfamiliar with the process of proposals and mediation, but would welcome your feedback and advice on how you feel we can take this forward and progress to an amicable solution.

 

Kind regards

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I have emailed the following (what a cop out!!)

 

Good morning XXX

 

I am unfamiliar with the process of proposals and mediation, but would welcome your feedback and advice on how you feel we can take this forward and progress to an amicable solution.

 

Kind regards

 

And their reply....

 

Good morning Mr XXXXX

 

As you will be aware, we have provided all documentation in response to your Defence.

 

We can instruct our Solicitors to make an application to the Court for this to be struck out and for Judgment to be entered. Following this course of action, we would then make an application for a Charge against your property, which would remain for the duration of the debt.

 

As you have stated that you would like to try to resolve the matter, I am assuming that you would prefer to avoid further court action, thereby increasing the costs due.

 

If you are in a position to offer a one off settlement figure, this is something we can possibly discuss to close the file.

 

Alternatively, we can instruct our Solicitors to draft a form of Consent Order which would reflect monthly repayment terms for the full outstanding balance. This document would be filed with the Court to show the terms reached. In view of the outstanding balance we would require realistic monthly payments.

 

As another alternative, we can offer the option of a Voluntary Restriction. The Restriction can be registered against your beneficial interest in the property and would remain for the duration of the debt. This way, we would not have to make an application to the Court which would incur further fees and costs, for which you would be liable.

 

It might be sensible to discuss the options. I can telephone you if you provide a telephone number, alternatively you can contact me on xxx between the hours of 8.00 a.m. and 2.00 p.m.

 

Regards

 

XXX

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And their reply....

 

Good morning Mr XXXXX

 

As you will be aware, we have provided all documentation in response to your Defence.

 

We can instruct our Solicitors to make an application to the Court for this to be struck out and for Judgment to be entered. Following this course of action, we would then make an application for a Charge against your property, which would remain for the duration of the debt.

 

As you have stated that you would like to try to resolve the matter, I am assuming that you would prefer to avoid further court action, thereby increasing the costs due.

 

If you are in a position to offer a one off settlement figure, this is something we can possibly discuss to close the file.

 

Alternatively, we can instruct our Solicitors to draft a form of Consent Order which would reflect monthly repayment terms for the full outstanding balance. This document would be filed with the Court to show the terms reached. In view of the outstanding balance we would require realistic monthly payments.

 

As another alternative, we can offer the option of a Voluntary Restriction. The Restriction can be registered against your beneficial interest in the property and would remain for the duration of the debt. This way, we would not have to make an application to the Court which would incur further fees and costs, for which you would be liable.

 

It might be sensible to discuss the options. I can telephone you if you provide a telephone number, alternatively you can contact me on xxx between the hours of 8.00 a.m. and 2.00 p.m.

 

Regards

 

XXX

 

Consent would be a viable conclusion but they state its for the full balance? Assuming thats the way you wish to proceed and you are content that they have disclosed all relevant documentation and are valid?

 

Andy

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The information they have provided is not valid. The agreement and accompanying terms are not compliant.

 

I guess its a choice to either state this and see if they proceed or state this and set up a Consent Order that is extremely reasonable given they have no valid claim of relief?

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The information they have provided is not valid. The agreement and accompanying terms are not compliant. Ok so you take that into consideration with your offers

 

I guess its a choice to either state this and see if they proceed or state this and set up a Consent Order that is extremely reasonable given they have no valid claim of relief? That is were you will use the above fact as leverage...there is no reason why they can not accept a Consent on a reduced amount and if you can agree that...... also request each party bear its own costs.

 

Regards

 

Andy

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The information they have provided is not valid. The agreement and accompanying terms are not compliant. Ok so you take that into consideration with your offers

 

I guess its a choice to either state this and see if they proceed or state this and set up a Consent Order that is extremely reasonable given they have no valid claim of relief? That is were you will use the above fact as leverage...

 

Hi Andy

 

I just want to get this right.!!

 

Should I explain I consider their documents invalid and therefore suggest any litigation to fail. On that basis I would consider a Consent order for a reduced amount. Or do I not mention the invalidity of the documents?

 

Thanks

 

Alloyz

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Ok the aim of this exercise is to mutually agree an amicable agreement...so try not to get one over them even though their response contains inaccurate legal boasts.

 

So in response you need to state that you understand having sought legal advice that the documents disclosed contain errors that render them invalid and therefore consider your defence to contain merit and that any strike out of your defence would be vigorously contested.

Notwithstanding the above statement you are aware of a need to conclude this matter without further costs or use of the courts resources to enable an amicable agreement to dispense with this claim.

 

I therefore consider an offer of £ xxxxxxx by way of a consent order under an agreed monthly payment arrangement to be the way forward.

 

(don't raise the matter of costs yet until they offer a schedule of Consent)

 

Andy

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Sent the following, decided to see where they feel a settlement should be...

 

Good afternoon xxx

 

Thank you for your reply.

 

I understand, having sought legal advice, that the documents disclosed contain errors that render them invalid and therefore consider my defence to contain merit and that any strike out of my defence would be vigorously contested.

 

Notwithstanding the above statement I am aware of a need to conclude this matter without further costs or use of the courts resources to enable an amicable agreement to dispense with this claim.

 

Given those circumstances, I would welcome your proposal for both a Full and Final Settlement by way of a one off payment; and a proposal for a consent order under an agreed monthly payment arrangement.

 

I look forward to your reply.

 

Kind regards

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did you get a reply back?

i poss would've been tempted to turn the tables first and invited them to discontinue their claim :)

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Hi all

 

Had a few emails back and forth from Hillesden, and we are discussing settlement.

 

I will paste their offers below, which are totally inadequate considering their position.

 

I have got the bones of my WS done but really need someone to look over it and hopefully look at my case on its merit and format of the WS?

 

Advice and comments gratefully accepted

 

"I apologise for the oversight of not replying to your email regarding settlement

Your Defence confirms taking out the credit card agreement, however I concur with you that we would prefer try and resolve the matter rather than enter into protracted litigation and unnecessary court attendance, which will only escalate the costs in this case.

With regards to concluding this case, I propose the following:

1. A one off settlement of £XXXX.00, to be paid by the end of May. (30% discount)

2. A Tomlin Order for the full outstanding balance to be paid by monthly instalments of £XXX (over a period of approximately 4 years)

3. A Voluntary Restriction to be placed against your beneficial interest in the property, to avoid a County Court Judgment, again for the full outstanding balance.

I await hearing from you by 9th May, you once you have had the opportunity of considering the above."

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Please could I have some advice/ comments on the WS below? Is the case law still relevant and up to date or i there any other I should add..... Many thanks

 

A

 

1. I, NAME of ADDRESS am the defendant in this action and make the following statement as my defence to the claim made by Hillesden Securities Ltd

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. Hillesden have issued a claim against me dated 31st Jan 2013.

 

4. On 15th Feb 2013 I made a request under CPR31.14 for certain documents including a Default Notice, the Agreement and the Terms and Conditions in relation to the account.

 

5. On 26th February 2013, in response to my CPR 31.14 request, they sent me my application form, Terms and Conditions and a default notice pursuant to the claim.

 

6. On 2nd Apr 2013 I asked for further confirmation of which Terms and Conditions they state were in place at the time of signing the application, as I have received 3 different sets of Terms and Conditions in relation to the account and all have been stated as in force at the time of signing the application.

 

7. Hillesden confirm on 12th April 2013, the set they sent in letter of 26th February 2013, were the ones in force at the time I signed my agreement.

 

8. Default Notice:

 

9. The Default Notice received from Hillesden was originally supplied by MBNA on 12th Feb 2010, and was sent 2nd Class. It was dated 8th Feb 2010.

 

10. Interpretation Act 1978, Section 7 which relates to service by post, section 2:

2. Practice Direction

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

i.

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

ii.

"Working days" are Monday to Friday, excluding any bank holiday.

 

11. Date of service is therefore 4 days after posting and therefore 12th February 2010. The remedy time is defined as 14 clear days after service.

 

12. Therefore, remedy date should therefore have been 26th February 2010 and not the 25th February 2010 (13th Feb to 26th Feb).

 

13. This makes the default notice invalid in accordance with Consumer Credit Enforcement, Default and Termination, Notices Regulations 1983 (Schedule 2, section 3,c).

 

14. Aside from the allowable time to remedy the breach being insufficient to render the Default Notice valid, the account was sold by MBNA to Hillesden inside the Default period (I was notified of the sale to Hillesden on the 19th February 2010).

 

15. This is contrary to the Consumer Credit Act 1974 s87 (1) (a).

 

16. Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid.

 

17. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach and an accurate time scale allowed to remedy any such breach.

 

18. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

19. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974.

 

20. Section 87 makes it clear that a valid default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums, due to a breach of the agreement.

 

21. Therefore without a valid default notice, I suggest the claimant’s case cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

 

22. Failure of a default notice to be accurate invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255)

 

23. It is also an unlawful rescission of contract, which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

24. Terms and Conditions:

 

25. The Terms and Conditions supplied on 26th February 2013, conflict with the ones confirmed as the Terms and Conditions in force by MBNA, the original creditor, in their letter 6th Sept 2010 and 26th May 2011 and conflict with previous Terms and Conditions supplied by Hillesden in their letters 22nd Dec 2010 and 18th Feb 2011 and also stated as in force at the time the application was signed.

 

26. These Terms and Conditions, now established and confirmed as the actual Terms and Conditions in force at the time of signing my agreement are not referred to once by ‘title’ throughout the entire application.

 

27. On the application supplied, under Data Protection, it asks the applicant to read clause 11 on how they will process my data, however clause 11 on the Terms and Conditions supplied is in relation to Altering the Agreement and not Data Protection.

 

28. On the application it refers to condition 14 in relation repayments and payment holiday’s, however condition 14 on the Terms and Conditions supplied is the definitions section.

 

29. On the reverse of the application, it refers the applicant to clauses 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 within the Terms and Conditions, however these are not present in the Terms and Conditions supplied and confirmed as in force at the time of signing the application.

 

30. The applicants address shown on the Terms and Conditions was only valid from 2007 when I purchased the property and not 2001 when the application was made.

 

31. On the reverse of the application it states “set out in paragraphs 1-15 are “some” of the provisions contained in Conditions 1 and 2 of the “MBNA Credit Card Terms and Conditions”.

 

32. The Terms and Conditions supplied are not entitled “MBNA Credit Card Terms and Conditions”

 

33. However, there is the omission of clauses 1.11, 1.8, 2.1 and 2.4 therefore the applicant is unable to refer to them.

 

34. The Terms and Conditions supplied by Hillesden’s and stated as the Terms and Conditions in force at the time the agreement was signed, do not contain conditions 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 which the applicant is asked to refer to on the application.

 

35. These conditions are stated as part of either ‘interest’ or ‘repayment’ which are prescribed terms.

 

36. The Terms and Conditions at the time of signing the application were therefore incomplete in respect of prescribed terms.

 

37. A valid credit agreement must contain certain terms within the signature document The Consumer Credit Act 1974 (s.60(1)(2).

 

38. These core terms are the credit limit, repayment terms and the rate of interest The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (Column 2 schedule 6).

 

39. Prescribed terms must be within the signature document The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (6 Signing of agreement)

 

40. The agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor The Consumer Credit Act 1974 (s.61(1)(a).

 

41. The court shall not make an enforcement order under section 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 section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner) The Consumer Credit Act 1974 127(3)

 

42. The above defence is backed by case law:

 

43. From the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson v FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974, the agreement cannot be enforced.

 

44. Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:

 

45. “The creditor must …be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

46. Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) paragraph 29:

 

47. “The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

48. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131:

 

49. “The law states that without a prescribed agreement the courts may not enforce under 127(3) and Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

50. 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.

 

51. This is my statement of Truth

 

52. Dated- XXXX

 

53. Signed- XXXX

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Hi

 

Just finished editing and rewording certain aspects of my WS. Any advice would be greatly appreciated:

 

1. I, NAME of ADDRESS am the defendant in this action and make the following statement as my defence to the claim made by Hillesden Securities Ltd

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. Hillesden have issued a claim against me dated 31st Jan 2013.

 

4. On 15th Feb 2013 I made a request under CPR31.14 for certain documents mentioned in their particulars of claim, including a Default Notice, the Agreement and the Terms and Conditions in relation to the account.

 

5. On 26th Feb 2013, in response to my CPR 31.14 request, they sent me my application form, Terms and Conditions and a default notice pursuant to the claim.

 

6. On 2nd Apr 2013 I asked for further confirmation of which Terms and Conditions they state were in place at the time of signing the application, as I have received 3 different sets of Terms and Conditions in relation to the account and all have been stated, by Hillesden, as in force at the time of signing the application.

 

7. Hillesden confirmed on 12th April 2013, the set they sent in their letter of 26th February 2013, were the ones in force at the time I signed my agreement.

 

8. Default Notice:

 

9. The Default Notice received from Hillesden was originally supplied by MBNA on 12th Feb 2010, and was sent 2nd Class. It was dated 8th Feb 2010.

 

10. I would like to refer you to The Interpretation Act 1978, Section 7 which relates to service by post, section 2:

2. Practice Direction

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

i.

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

ii.

"Working days" are Monday to Friday, excluding any bank holiday.

 

11. Date of service is therefore deemed 4 days after posting and therefore 12th Feb 2010 if posted same day as the date on the letter. The remedy time is defined as 14 clear days after service.

 

12. Therefore, remedy date should therefore have been 26th February 2010 and not the 25th Feb 2010 (13th Feb to 26th Feb).

 

13. This makes the default notice invalid in accordance with Consumer Credit Enforcement, Default and Termination, Notices Regulations 1983 (Schedule 2, section 3,c).

 

14. Aside from the allowable time to remedy the breach being insufficient to render the Default Notice valid, the account was sold by MBNA to Hillesden inside the allowable remedy date (I was notified of the sale to Hillesden on the 19th February 2010).

 

15. This is contrary to the Consumer Credit Act 1974 s87 (1) (a).

 

16. Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid.

 

17. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach and an accurate time scale allowed to remedy any such breach.

 

18. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

19. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974.

 

20. Section 87 makes it clear that a valid default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums, due to a breach of the agreement.

 

21. Therefore without a valid default notice, I suggest the claimant’s case cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

 

22. Failure of a default notice to be accurate invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255)

 

23. It is also an unlawful rescission of contract, which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

24. Terms and Conditions:

 

25. The Terms and Conditions supplied by Hillesden on 26th Feb 2013, conflict with the ones confirmed as the Terms and Conditions in force by MBNA, the original creditor, in their letter 6th Sept 2010 and 26th May 2011.

 

26. The Terms and Conditions supplied by Hillesden on 26th Feb 2013 conflict with previous Terms and Conditions supplied by Hillesden in their letters 22nd Dec 2010 and 18th Feb 2011, which were also stated as in force at the time the application was signed.

 

27. The claimant is put to strict proof the Terms and Conditions, now established and confirmed as the actual Terms and Conditions in force at the time of signing my agreement, have been constructed in compliance with The Consumer Credit Act 1974.

 

28. The Terms and Conditions in force at the time the application was signed do not correlate with the information within the application form.

 

29. For example, on the application supplied, under Data Protection, it asks the applicant to read condition 11, in the Terms and Conditions, on how they will process my data; however condition 11 on the Terms and Conditions supplied is in relation to Altering the Agreement; and Data Protection is covered on the 4th page of the Terms and Conditions which is without any condition reference.

 

30. On the application supplied it refers to condition 14, in the Terms and Conditions, in relation repayments and payment holiday’s, however condition 14 on the Terms and Conditions supplied is the definitions section; and payment holidays are covered in condition 8a.

 

31. The Terms and Conditions in force at the time the application was signed are set out using a number and letter system, for example 1, 1a, 1b, 1c, 2, 2a, 2b.

 

32. However the Financial & Related Conditions on the reverse of the application asks the applicant to refer to conditions with a decimal system, for example 1.11, 1.8, 2.1.

 

33. The claimant is put to strict proof the defendant was therefore provided with adequate Terms and Conditions to allow the defendant to suitably and easily review the agreement and subsequent liabilities; and that the defendants position was not unfairly prejudiced in relation to entering into the agreement.

 

34. The applicants address shown on the Terms and Conditions was only valid from 2007 when the defendant purchased the property and not 2001 when the application was made.

 

35. On the reverse of the application, within the Financial & Related Conditions, it asks the applicant to refer to condition 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 within the separate ‘MBNA Credit Card Terms and Conditions’, however these conditions are not present in the Terms and Conditions supplied and confirmed as in force at the time of signing the application; therefore the applicant was unable to refer to them in any instance.

 

36. On the reverse of the application, within Financial & Related Conditions, it states “set out in paragraphs 1-15 are “some” of the provisions contained in Conditions 1 and 2 of the “MBNA Credit Card Terms and Conditions”.

 

37. The Terms and Conditions supplied have not been given the title “MBNA Credit Card Terms and Conditions”.

 

38. There are no other Terms and Conditions mentioned throughout the application form and there is no suggestion there were any other Terms and Conditions present, for example by a different title or stated as ‘attached’.

 

39. However, even if the applicant would have known these Terms and Conditions were the one the applicant is being asked to refer to, there is the omission of condition 1.11, 1.8, 2.1 and 2.4, therefore the applicant was unable to refer to them in any instance.

 

40. The Terms and Conditions supplied by Hillesden’s and stated as the Terms and Conditions in force at the time the agreement was signed, do not contain conditions 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 which the applicant is asked to refer to on the application within the Financial & Related Conditions.

 

41. These above conditions are stated, within the Financial & Related Conditions on the application form, as part of either ‘interest’ or ‘repayment’ conditions which are prescribed terms.

 

42. On the reverse of the application within the Financial & Regulated Conditions section 4(b), the minimum repayment is stated as ‘£5, or the account balance as shown on the statement, if less than £5.

 

43. On the Terms and Conditions supplied by Hillesden, the minimum repayment is stated as ‘If the balance shown on your statement is less than £25, your minimum payment will be the total amount of the statement balance’.

 

44. The Terms and Conditions provided at the time of signing the application were therefore not only incomplete but conflicting in respect of prescribed terms; therefore the applicant was either unable to refer to them or the information within the application and Terms and Conditions were conflicting.

 

45. The claimant is put to strict proof the agreement complies with the Consumer Credit Act 1974 sections 60 and 61, and is not subject to section 127(3) of said act; and is therefore enforceable.

 

46. A valid credit agreement must contain certain terms within the signature document The Consumer Credit Act 1974 (s.60(1)(2).

 

47. These core terms are the credit limit, repayment terms and the rate of interest The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (Column 2 schedule 6).

 

48. Prescribed terms must be within the signature document The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (6 Signing of agreement).

 

49. The agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor The Consumer Credit Act 1974 (s.61(1)(a).

 

50. The court shall not make an enforcement order under section 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 section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner) The Consumer Credit Act 1974 127(3)

 

51. The above defence is backed by case law:

 

52. From the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson v FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974, the agreement cannot be enforced.

 

53. Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:

 

54. “The creditor must …be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

55. Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) paragraph 29:

 

56. “The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

57. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131:

 

58. “The law states that without a prescribed agreement the courts may not enforce under 127(3) and Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

59. 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.

 

60. This is my statement of Truth

 

61. Dated- XXXX

 

62. Signed- XXXX

Edited by Alloyz1
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why are you doing a WS now? isn't it stayed? or are you preparing? :)

 

Yes, exactly that Ford, preparation

 

Just looking for feedback because even when I think it's right.... I find other people's advice really useful and realise i need the input!!

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ok :)

a WS is what you would say in court.

at first sight

firstly, statement of truth at the beginning.

maybe no need to say 'neither admit or deny', remember your defence.

not sure about the 'unlawful rescission'. a dud argument imo.

re case law re required compliant default notice see also Harrison HC case, and Brandon v Amex CA case in favour.

Wilson case is important re s127.

can do exhibits with a WS.

will have a further look later :) . also, get andy to have a look in.

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Thanks Ford

 

Will have a look over those cases. Just mentioned rescission as extra amo!

 

I pm'd Andy to take a look when he has time, so hopefully he will call in.

 

A

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Is there any point in mentioning the Faulty DN in the WS above or is it best to keep it in to compound the matter?

 

Any comments on the WS gratefully accepted... thanks

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Inclusion of the DN and any validity is a must... probably the most important factor.The rest of the WS needs to be redrafted it looks like a second defence Alloyz.

 

Andy

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A second defence is additional to your first...further pleadings.A Witness statement should be an informal summary of the claim and your contentions and reservations has to why you challenge their claim. Reference to case law can be made but not included this should be done by way of exhibits and marked as such.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

If you want advice on your Topic please PM me a link to your thread

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