Cabot/Restons Claimform - Marbles card 'debt'***Claim Discontinued***

[brewgriff]

I sent the cca request to Cabot but as yet they have not replied. The issue date on the summons is 22 july 2014. What is my defence?

[dx100uk]

so you've weeks yet - by midnight sat 23rd

 

prob the holding/no paperwork defence

 

go read other threads too and gen up

 

dx

[brewgriff]

Thankyou DX

[brewgriff]

Cca request sent recorded delivery to cabot 29 July and someone signed for it on the 30 July. They still have not replied. Is there a time limit they need to reply to me in?. Should I submit my defence now and if so what do I write exactly. Thankyou.

[dx100uk]

no as post 27

 

dx

[brewgriff]

Still no reply from cabot. I need to fill my defence in tomorrow as i wont be here saturday. What exactly do i write for my defence? . Thankyou for your help.

[dx100uk]

prob the holding/no paperwork defence

 

go read other threads here you'll see some

[brewgriff]

Thanks Dx . Ive had a look around the site , but can you point me in the right direction ie what to search for as i cant find what im looking for ( sorry to be a pain)

[brewgriff]

Ive found tis one DX /. Will this be ok if i edit it out and put my details in ?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?204093-Template-needed-for-Embarassed-Defence-Please!

 

 

Thanks

[dx100uk]

do it post here for andyorch to see.

 

don't file till given ok.

 

dx

[brewgriff]

Defence

 

 

1. I am the defendant in this action and make the following statement as my defence to the claim made by Cabot Financial ( UK) 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. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

 

 

 

7. Further more 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. 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

 

8. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularized 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

 

9. I will now look at the important issues relating to this case which must be brought to the courts attention

 

 

Pre-action protocols

 

10. The claimant Cabot Financial (UK) Limited has failed to follow the pre-action protocols insofar as they did not send anyletter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

 

The Request for Disclosure

 

 

 

11. Further to the case, on 25 March 2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, 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 or termination notices, to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

12. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

13. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

 

 

 

 

The Credit Agreement

 

 

14. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

15. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

16. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

1. Number of repayments

 

2. Amount of repayments

 

3. Frequency and timing of repayments

 

4. Dates of repayments

 

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

17. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

18. Notwithstanding point 18, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

19. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) 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).

20. The courts attention is also 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 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

21. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" 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."

 

22. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

 

The Default Notice

 

23. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

24. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

25. Notwithstanding point 25, I put the claimant to strict proof that any default notice sent to me was valid. I note that 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. 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)

 

26. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a 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

 

 

 

The Assignment of the debt

 

27. As stated in point 7, claimant had instigated this action, consequently, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925

 

28. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

 

29. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their name

 

Conclusion

 

30. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

31. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

32. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

33. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

34. 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 under the Consumer Credit Act 1974 which is the relevant act in this case.

A CCA request was sent for on the 29 July 2014 recorded delivery and signed for on 30 July 2014

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

[dx100uk]

dunno where you got that from brew

 

but that's not a recent defence from here

that's a very old embarrassed defence that is far to much waffle etc etc.

 

in this financial legal forum

click its name up the top

and view recent threads.

 

something like this:

 

Here is a recent Cat defence that Andyorch drafted for another poster

which was successful in the claim remaining stayed.

You will have to edit slightly to suit and add your requests for CCA /CPR ect.....

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

 

Defence

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2.Paragraph 1 is noted. I have had an agreement in the past with Shop Direct but any alleged balance is and remains in dispute for faulty goods/services.

 

3.Paragraph 2 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over 3 years ago.

4.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

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

5.As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

6.On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

7.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Regards

Andy

***************

 

 

dx

[brewgriff]

Thanks Dx ive had another bash, hopefully im getting somewhere with this one.

 

Particulars of Claim

 

1.The claimant claims payment of the overdue balance from the Defendant under a contract between the defendant and Bank of Scotland (Marbles) dated on or about 05/11/2002.

 

2. and assigned to the Claimant on 29/04/2010 in the sum of 6410.70

 

Particulars a,c no xxxxxxxxxxxxxxx

date item value

30/06/2014 Default Balance 6410.70

post refrl cr nil

total 6410.70

 

 

Defence

 

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. Paragraph 1 is accepted I have in the past had agreements with Bank of Scotland for credit card services.

 

2 Paragraph 2 is denied I have no recollection of ever receiving a Notice of Assignment over 4 years ago nor ever been approached with regards to any alleged debt.The claimant has failed to issue any Notice of Sums in Arrears or statements since the alleged assignment and is therefore prevented from seeking relief pursuant to the CCA2006 amendments.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show evidence of service of Notice of Sums in Arrears

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

 

3. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

4. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. If I understand this correctly, then this stays in, as they are apparently the assignee according to the NoA.

 

5. On the 29th July 2014 I made a legal request by way of a section 78 request to the Claimant.This was sent recorded delivery and signed for on the 30th July 2014. The Claimant has failed to comply and therefore is in default of this request and as such unable to request any relief until compliance.I have also requested information pertaining to this claim by way of a CPR 31.14 request to clarify its claim,the Claimant has failed to respond

 

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.

[dx100uk]

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[brewgriff]

[dx100uk]

yep got it

 

 

that's a std ack letter

 

 

dx

[brewgriff]

I guess i sit and wait now then.

[brewgriff]

Letter from Cabot today thanking me for my request for information under the Consumer credit Act .

 

 

They say they do not have this information on file and have requested the information from the original lender.

 

 

They anticipate to provide this information within 40 days.

 

Does this mean they have 40 days or the original 28 days from the court date to reply?

 

 

Thanks

[AndyOrch]

They cant take as long as their heart desires...you have submitted your defence...they have 28 days to decide if they wish to proceed (be silly if they did without any paperwork)

 

Regards

Andy

[brewgriff]

The 28 days have long gone and ive heard nothing?

[AndyOrch]

So put it out of your mind until you do.

 

Andy

[brewgriff]

ok thankyou for all your help.

[brewgriff]

received this today.

[dx100uk]

pdf please

 

 

dx

[brewgriff]

Is that ok?