MKDP Claim Form old Barclaycard 'debt'***Settlement agreed claim stayed***

[Alloyz1]

Hi

 

Claim form received dated 16th May:

 

The defendant claims the sum of £2xxx being monies due from the defendant to the claimant under a regulated agreement originally between the defendant and BC.

 

The defendants acc no was xxx and was assigned to the claimant on xx notice of this has been provided to the defendant. The defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the CCA74.

 

The claimant claims the sum of £2xxx and costs.

 

The claimant has complied , as far as is necessary, with the pre-action conduct practice direction.

 

 

I have received the NOA

 

The default notice is deficient in time (slightly) and wording (greatly)

 

The agreement is the original (not reconstituted) and is not signed by the creditor

 

I have not read the terms provided as yet but will be doing so tonight and correspond them with the agreement and statements

 

Their POC do not claim statutory interest

 

They do not mention termination notice

 

The account is not SB

 

They do not mention statements provided

 

Any advice on the above would be greatly appreciated

 

Many thanks

 

Alloyz

[The Mould]

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

The above Court of Appeal judgment (click on link) confirms that a creditor is not entitled to enforce a credit agreement in contravention of the statutory requirements imposed upon him under s.87(1) CCA 1974 (as amended).

 

 

Further, in Harrison v Link, the High Court also ruled that service of a valid default notice was a prerequisite to enforcement proceedings.

 

Your creditor – the Claimant, clearly states in his statement of case (POC) that he served a default notice on you pursuant to CCA 1974, therefore, he has clearly terminated the credit agreement on which he relies and seeks to enforce via the statutory route. The invalid default notice that you mention means he is not entitled to proceed to enforce the credit agreement (see – s.87(1) CCA 1974 (as amended) & above Court of Appeal case).

 

I sincerely hope that the foregoing is of some help to you with this matter.

 

Godzilla

 

Kind regards

 

The Mould

[Alloyz1]

Mould

 

Thank you for that, I will read up on the relevant cases which should then help me develop a defence with substance.

 

If anyone has time, could you comment on if the fact the agreement is not signed by the OC is of any pertinence. It is the original agreement with my signature but they have omitted to sign the agreement. 61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Thank you again

 

Alloyz

[Alloyz1]

CPR 31.14 request sent today, recorded, for agreement, assignment and default notice

[The Mould]

A Defence or part of a Defence based on a plea of ‘ improperly executed credit agreement’ more often than not can prove to be fruitless, extremely disappointing and very costly to any debtor, to say the least, because;

 

 

s65(1) Consumer Credit Act 1974 provides that an “improperly executed agreement is only enforceable by order of the Court”

 

 

In your case reported here, the invalid default notice provides sufficient grounds for your defence and (perhaps) an application with costs requesting strike out of the claim in the light of this action by the Claimant which is in contravention of statute (the CCA 1974 ((as amended) – in particular s.87(1) of the Act) and so cannot be allowed to proceed.

 

Godzilla

Kind regards

 

The Mould

[Alloyz1]

Okay, of to read up on the significance of 'contravention of statute'...

 

Your a star Mould, thanks

 

A

[Alloyz1]

Morning

 

First draft of my proposed defence- Could someone cast their eye over this and let me know how it seems?

 

Many thanks (andyorch- adapted from one you suggested in one of my previously successful cases- so thanks)

 

Reminder of Particulars of Claim:

 

1. The defendant claims the sum of £2xxx being monies due from the defendant to the claimant under a regulated agreement originally between the defendant and BC.

 

2. The defendants account number was xxx and was assigned to the claimant on xx notice of this has been provided to the defendant.

 

3. The defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the CCA74.

 

4. The claimant claims the sum of £2xxx and costs.

 

5. The claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

Defence

 

It is admitted the defendant entered into an agreement with BC. It is denied the agreement met the conditions of the Consumer Credit Act 1974.

 

The claimant is put to strict proof a notice of assignment was served, with proof of delivery.

 

It is denied that a Default Notice pursuant to the CCA1974 was served. The claimant also failed to serve any Notice of Sums Arrears since assignment pursuant to the CCA2006 amendments (sec 86C ) and precluded from adding any interest or seeking enforcement or relief until such time it is served.

 

The Claimant is put to strict proof to:

 

(a) show service of a Default Notice pursuant to the CCA1974 and proof of delivery

(b) show how the Claimant has legal right by way of the Credit Consumer Agreement and Terms and Conditions applicable

© show service of a Notice of Assignment and proof of delivery

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

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.

[dx100uk]

should be a walk in the park after your game with DLC before alloyz...

 

is this your old Barclaycard

 

dx

[AndyOrch]

I would attack their point 5 Alloyz...rest looks fine.

 

Andy

[Alloyz1]

You are not wrong there dx, thanks for dropping in.... Yes my old Barclaycard

 

Hi Andy

 

Point 5, would you suggest I mention there has been no attempt explore ADR (PD- Pre Action Conduct s8) prior to a claim issue, non disclosure of documents mentioned in POC in a LBA (PD- Pre Action Conduct s7) etc?

[Alloyz1]

I am considering writing to the claimant and making an offer to mediate (CPR 1.4e).

 

May be able to put it to bed quickly at a very reduced amount.

 

If they don't play ball, recently ignoring a request to mediate (i.e. not responding one way or another) was seen as ‘an unreasonable refusal’ to mediate and incurred costs implications for the offending party plus a very uncomfortable time in court (PGF ii SA – v – OMFS Company Limited [2013] EWCA CIV 1288 2nd October Court of Appeal.)

 

Jackson review etc

[AndyOrch]

You are not wrong there dx, thanks for dropping in.... Yes my old Barclaycard

 

Hi Andy

 

Point 5, would you suggest I mention there has been no attempt explore ADR (PD- Pre Action Conduct s8) prior to a claim issue, non disclosure of documents mentioned in POC in a LBA (PD- Pre Action Conduct s7) etc?

 

Thats the idea

[Alloyz1]

Brill thanks Andy

[Alloyz1]

Extra paragraph added to defence:-

 

It is denied the claimant has complied with pre action conduct practice direction. The claimant is put to strict proof they have explored alternative dispute resolution with the defendant prior to issuing a claim, in compliance with section 8. The claimant is put to strict proof the documents mentioned in their particulars of claim were included with the letter before action, in compliance with section 7.

[Guest]

note also para 4.4 (4) pre action

did they comply with annex b?

the poss specific cpr sanctions re non compliance of pre action proto debt alone aren't great, but it could all add up.

as you note, it works both ways.

[Alloyz1]

Thanks Ford

 

I will look at this again

[Alloyz1]

Just getting ahead of the game here and starting my WS. I am happy with the detail I need for the invalid DN (did a similar one for MBNA with the help of Andy), but a bit of advice required if you have time please:-

 

Is it worth mentioning the OC did not sign the original agreement (thought it may be contrary to Consumer Credit (agreement) regulations- reg 2 and schedule 5, paragraph 1 'the creditor’s signature did not appear in the form of a signature box prescribed by that paragraph'.

 

Also is it pertinent to mention the application is headed 'Sign Up Today' contrary to the Consumer (Credit Agreements) regulation 1983 (‘the Regulations) regulation 2 and schedule 1, Paragraph 1, the document should have contained the heading 'Credit Card Agreement regulated by the Consumer Credit Act 1974'.

 

Thanks

 

A

[AndyOrch]

I would refer to the above points but be careful you dont get in over your head...SCT could ride with the above as de minimis ...depends on the DJ

[Alloyz1]

Cheers Andy

 

I will keep those points low key but use it to show a general disregard for the over all aim of the regs.

 

I will keep the DN the main theme along with no proof of how the T&C's were provided (quoting Carey) as per my previous WS.

 

Thanks again

 

A

[Alloyz1]

In response to my 31.14

 

I have received a delay letter from claimant stating they will refer to OC a

nd now from OC I have received several sets of T&C..

. No agreement and no DN.

 

Do I base my WS (when asked to submit one) around these docs only,

 

given I have asked them to provide the docs referred to in their POC and this is all I have received?

 

Think I just answered my own question??

[AndyOrch]

You will both complete standard disclosure at the time you draft your WS...so it will be based on that along with your points raised in defence..

 

Andy

[Alloyz1]

Thanks Andy

 

A

[Alloyz1]

Quick question-

 

On the application I signed, in 2004, there is a section under the signature box that states "Once you have signed this agreement, you will have a short time to cancel it. Exact details of how to cancel this agreement will be sent to you by post."

 

The cancellation details came separately and were part of a document that has all the prescribed T&C's on. As this was sent out by post once they received the signed application, the debtor could not have had the prescribed T&C's at the time of signing.

 

Further Cancellation Details are for the protection of the consumer as described in section 60 (1) c of the CCA74 and as these were not part of the application form at the time of signing, did not conform to the s60 regs adn must be subject to s127 (3).

 

Does that make sense? and more importantly in your humble opinions, could it be seen as de minimis or highly relevant.

 

Thanks

 

A

[Alloyz1]

As well as the above question in #23

 

I have been reading Carey- particularly para 27... I have been provided with an application that the creditor has not signed. Judge Waksman states the agreement is not executed until the agreement is signed by the creditor.

 

Your opinions would be most welcome

 

A

[AndyOrch]

Just refer to both points within your WS.