Marlin Europe - claim form for HSBC M+S card - help

[outofpocketagain]

No I dont know how to handle this at all

[AndyOrch]

Do you think it it wise to defend this then if you cant even write points of dispute and why you should not pay the claimant? Once the defence is submitted you are on your own and will have to see this through to trial.

 

I can post another defence but you will have to edit to suit...this is a self help forum...we will advise and assist and guide but you have to do a little input.

List me 3 reasons why you think a defence is required to this claim?

 

Regards

 

Andy

[outofpocketagain]

I was told further up the thread that it was unenforcable as it is a store card converted by MS to a credit card

I am in a dmp and making monthly payments to therm, but obviously they want to get in front of other creditors by issuing judgement, claiming goods, charging order - whatever they see fit

 

I dont really have a defence - I dont want a ccj against my name and I was recommended here to obtain advice/ standard templates to help defend my case

 

If I have misunderstood then I apologise

[citizenB]

Was the M&S card a proper credit card or was it a store card that was upgraded.

 

If you could let us have the date of issue - top right hand corner of the claim

 

Plus the details of the claim and a little more information about the actual account itself.

 

Is your situation the same as was reported .. you have already advised this was an upgrade from store to credit card. Did you receive a new agreement and terms and conditions ?

 

If so, I will try and find someone who can help.

 

I was told further up the thread that it was unenforcable as it is a store card converted by MS to a credit card

I am in a dmp and making monthly payments to therm, but obviously they want to get in front of other creditors by issuing judgement, claiming goods, charging order - whatever they see fit

 

I dont really have a defence - I dont want a ccj against my name and I was recommended here to obtain advice/ standard templates to help defend my case

 

If I have misunderstood then I apologise

 

This isn't strictly accurate, I asked IF it was a store card that was upgraded. I then pointed out a judgment that MIGHT help if this was the case. You have stated it was so long ago, you cant remember.

 

It is impossible to have a standard/template defence as each is different. We really need you to provide us with information in order that we can help you present you case.

[citizenB]

So you are in a DMP and already making payments to them via the DMP ?

 

Do you have your own property, is this why they are attempting to prioritise their debt against others ? In the grand scheme of things, where does their debt fit in.

 

Is it the largest of your accounts ?

[AndyOrch]

Read post #34 here this is a store card conversion defence.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?246224-Debenhams-Store-Card-defence-**SUCCESS-CLAIM-STRUCK-OUT**/page2

[outofpocketagain]

I said earlier that i didnt know if received any new T and C

Yes - own mortgaged property and3rd largest creditor in a DMP of approx 80k

[citizenB]

This is the defence andyorch linked you to in the post above. Read it very carefully, amend where necessary.

 

 

 

 

In the Northampton (CCBC) County Court

 

 

Claim number: XXXXXXXXXXX

 

 

 

Between:

 

 

CL Finance Ltd - Claimant

 

 

 

 

and

 

 

 

 

XXX XXXXXXXX XXXXXXX - Defendant

 

 

 

Defence

 

 

1. I XXXXXXXX XXXXXXX of X XXXXXXXX XXXX, XXXXXXX, XXXXXXXXXXX XXXX XXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

 

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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

a) The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

 

b) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimants claim.

 

 

c) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

 

 

d) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

 

5. Further to the case, on the XXXX February XXXX I requested the disclosure of information pursuant to the Civil Procedure Rules part 31.14, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default notice.

 

 

6. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. I am also unable to assess the validity of any Default Notice purported to have been served on me.

 

7. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and section 87 makes it clear that a 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.

 

 

8. 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)

 

 

9. It is averred that the default notice referred to in the particulars of claim does not allow the notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time).

 

 

 

10. 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. The amount detailed in the Claimant’s claim is incorrect.

 

 

 

10. Without a valid default notice it could be inferred that the bringing about of a County Court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA.

 

 

 

11. Furthermore, the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on 3rd February 2010 and I note the date of issue on the claim as the 1st February 2009 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice

 

 

12. Consequently due to the claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

 

 

13. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

 

14. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the Courts permission to amend my defence accordingly if such paperwork is presented to the court.

 

 

15. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 1998, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

[citizenB]

You will also need to have a read of post # 37 in the link above as there were some amendments made by the poster on that thread.

[AndyOrch]

This is a Witness Statement from the same thread which you can gleen further arguments why it may be defended.

 

 

WITNESS STATEMENT

 

1. I, xxx, am the defendant in this action and make the following statement in opposition to the Claimant’s Case.

 

2. I deny having signed any agreement between me & the Claimant, Santandericon Cards (UK) Ltd for a credit card. However I do not deny having made an application for a store card underwritten by GE Capital Bank Ltd for the provision of a Debenhams account card.

 

3. On xxx I issued a request to xxxx under CPR31.14 for information relating to the claim but received no response.

In response the Claimant has supplied:

 

(a) a copy of an Application Form for a store card with Debenhams

(b) no copy default notice

© no copy of a Deed of Assignment between Santander Cards (UK) Ltd & the Claimant

(d) no copy of any Notice of Assignment

 

The Agreement

 

4. The Claimant has supplied a copy of an Application Form for a Debenhams Store card but has failed to provide any agreement for a credit card with either GE Capital Bank Ltd. or Santander Cards (UK) Ltd.

 

5. The Claimant claims that the store card was ‘upgraded’ to a credit card on xxx but has failed to provide the evidence of this.

 

6. There is a significant difference between a store card & a credit card. The former restricts the use of credit facilities to Debenhams stores, the latter can be used in shops and businesses anywhere that accept credit cards. Furthermore, the credit limits and interesticon rates for the 2 cards differ, as do other terms & conditions. Therefore, in order to ‘upgrade’ as the Claimant puts it, from one card to the other, it requires a new agreement to be issued by the creditor & signed by the applicant. The Claimant has not supplied an agreement issued by Santander Cards (UK) Ltd & signed by me. Any alleged agreement between Santander cards (UK) Ltd & myself cannot therefore comply with the provisions of the Consumer Credit Act 1974 & by the court is prevented from enforcing this agreement by S127 of the same Act. I aver that this claim has no prospect of succeeding.

 

Default Notice

 

7. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

8. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the alleged agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant & the Claimant has provided no copy of such & no evidence of posting or other method of service.

At trial I will refer to the judgment of Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) to support this & if necessary, also cite the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Notice of Assignment

 

9. The Claimant has not produced a copy of any Notice of Assignment issued by either the original creditor or any subsequent assignee.

 

10. Furthermore it is my case that no Notice of Assignment which complied with S196 of the Law of Property Act 1925 was ever delivered to me by the Claimant & the Claimant has provided no evidence of posting or other method of service of such.

 

Calculation of Sum Claimed

 

11. On xxxx I sent a request to the Claimant’s solicitors, xxx, to supply statements of account for the period xxxx to xxxxx. To date I have received only partial information relating to this account & it is therefore impossible to prove that the sum claimed is accurate. However from the information supplied I believe that the sum claimed was at least partly comprised of unlawful charges. This could render not only the sum of this claim inaccurate but any Default Notice issued by Santander Cards (UK) Ltd invalid, as the sums stated on both would have been calculated using a total that was itself inaccurate. I therefore put the Claimant to strict proof of the calulation of any sum claimed.

 

12. For the reasons stated above the Court is invited to dismiss this claim on the gorunds that the sum claimed cannot be legally enforced.

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

signature

 

Dated

[outofpocketagain]

Thanks All

 

will amend to suit my circumstances and submit

[AndyOrch]

The main thing is to submit something to stop a default judgment...you can sharpen your arguments later at Witness Statement stage.

[outofpocketagain]

Thanks for your help

Received letter from Marlinhs to say they dont have info on credit agreement on file and they have asked M & S to supply

[dx100uk]

as usual

issuing a court claim without any supporting paperwork

hoping for a default judgement and easy money.

 

dx

[outofpocketagain]

Received yesterday from the courts "Notice of proposed allocation to the small claims track"

This gives me the option of small claims mediation

Is this something i should agree to?

[AndyOrch]

Both parties are expected to by the court.