Ind Claimform - old HSBC Credit Card Debt - got judgement after only 17 days...

[exasperated]

Here is my proposed draft defence any input kindly received:

 

 

PROPOSED DRAFT DEFENCE FOR ...................(DEFENDANT) V IND LTD (CLAIMANT) CASE No. ................

 

 

 

1) It is not admitted that the defendant owes the sum claimed.

 

2) The claimant has failed to supply a CCA in response to my request as required by statute. The account has been in dispute since 2009 and neither the original creditor or subsequent Debt collection agencies have resolved the dispute despite numerous requests. (copies in files)

 

3) Furthermore I have not been supplied with a notice of assignment

 

 

4) If the claimant is not in possession of a valid CCA then they are in breach of the rule 7 point 1.3 of the SCA consumer credit source book regulation which creates a statutory duty to keep records and to have evidence this debt exists and they are pursuing the correct debtor

 

 

5) Additionally claimants and their alleged assignors are in breach of regulation 7.5 of the SCA consumer credit source book regulations which require that notice of assignment of any debt must be given to the alleged debtor

 

 

 

6) Statement…..This is a proposed draft defence and may be subject to change before filing.

 

 

 

I respectfully request that the judge give the claimant two weeks to supply avalid CCA and if they cannot that the claim be struck out

[AndyOrch]

What/where are their particulars exasperated ?

[exasperated]

Sorrt Andy

Do you mean the case number?

[AndyOrch]

No their points of claim...what they are suing you for....its no use posting a defence without their particulars...like asking me is that the correct answer and not telling me the question:-)

[exasperated]

Thanks Andy

Ill edit and repost tomorrow which I would be very grateful if you could have a look at for me.

FYI here is the link for the response to my original CCA request to BOS which they sent:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?217294-BOS-Mastercard-Check-This-Cca-amp-Covering-Letter-Out!!!

[AndyOrch]

If you could ...verbatim less any identifiable data.

[exasperated]

Andy

here is the same with the particulars..

Hegarty were named for correspondence but soon as the CCJ was granted they removed them and said they were acting for themselves. I never received a notice of assignment though it states so on the particulars. I know I will have to put them to proof but that said they can easily provid a letter.

PROPOSEDDRAFT DEFENCE FOR xxxxx xxxxxxxxxx(DEFENDANT) V IND LTD (CLAIMANT) CASE No. xxxxxxxxx

Amountclaimed: £4xxx.00

Courtfee: £185.00

Totalamount £5xxx.00

 

Particularsof claim: The claimant is the assignee of a debt due in relation to a creditagreement regulated by the consumer credit act 1974 entered into between Bankof Scotland plc (HF) and the defendant. Notice of assignment was provided tothe claimant in writing. Despite demand for payment th assigned debts remainsdue. The claimant complied with sections iii and iv and annex B of the PDpre-action conduct. And the claimant claims credit card account number xxxxxxxx xxxx xxxx balance of £4xxx.xx as of 12/03/xxxx interest under s69 at therate of 8% a year from 12/03/xxxx to 13/08/2014 of £2xx.xx and also interest atthe same rate upto the date of judgementor earlier repayment at a daily rate of 1.05% AND costs.

 

 

1) Itis not admitted that the defendant owes the sum claimed.

2) Theclaimant has failed to supply a CCA in response to my request as required bystatute. The account has been in dispute since 2009 and neither the originalcreditor or subsequent Debt collection agencies have resolved the disputedespite numerous requests. (copies in files)

3) FurthermoreI have not been supplied with a notice of assignment

4) Ifthe claimant is not in possession of a valid CCA then they are in breach of therule 7 point 1.3 of the SCA consumer credit source book regulation whichcreates a statutory duty to keep records and to have evidence this debt existsand they are pursuing the correct debtor

5) Additionallyclaimants and their alleged assignors are in breach of regulation 7.5 of theSCA consumer credit source book regulations which require that notice ofassignment of any debt must be given to the alleged debtor

6) Statement…..Thisis a proposed draft defence and may be subject to change before filing

Irespectfully request that the judge give the claimant two weeks to supply avalid CCA and if they cannot that the claim be struck out

[AndyOrch]

Many thanks exasp...just tidied and numbered their particulars into paragraphs.

 

 

Particulars of claim:

 

1.The claimant is the assignee of a debt due in relation to a credit agreement regulated by the consumer credit act 1974 entered into between Bankof Scotland plc (HF) and the defendant.

 

2. Notice of assignment was provided to the claimant in writing. Despite demand for payment the assigned debts remains due.

 

3.The claimant complied with sections iii and iv and annex B of the PDpre-action conduct. And the claimant claims credit card account number xxxxxxxx xxxx xxxx balance of £4xxx.xx as of 12/03/xxxx interest under s69 at the rate of 8% a year from 12/03/xxxx to 13/08/2014 of £2xx.xx and also interest at the same rate up to the date of judgement or earlier repayment at a daily rate of 1.05% AND costs.

 

Proposed Defence

 

 

1) It is not admitted that the defendant owes the sum claimed.

 

2) The claimant has failed to supply a CCA in response to my request as required by statute. The account has been in dispute since 2009 and neither the original creditor or subsequent Debt collection agencies have resolved the dispute despite numerous requests. (copies in files)

 

3) Furthermore I have not been supplied with a notice of assignment

 

 

4) If the claimant is not in possession of a valid CCA then they are in breach of therule 7 point 1.3 of the SCA consumer credit source book regulation which creates a statutory duty to keep records and to have evidence this debt exists and they are pursuing the correct debtor

 

5) Additionally claimants and their alleged assignors are in breach of regulation 7.5 of the SCA consumer credit source book regulations which require that notice of assignment of any debt must be given to the alleged debtor

 

6) Statement…..This is a proposed draft defence and may be subject to change before filing

 

I respectfully request that the judge give the claimant two weeks to supply a valid CCA and if they cannot that the claim be struck out

[exasperated]

Cheers Andy

One last question will it harm my defence if IND produce a notice of assignment that they did not send to me? Other than that I'll print this off and take it with me on the court date.

I will also make three copies of everything in my file relating to this account for myself, the claimant and the judge

If I have any communication from Ind re the email or anything else Ill post it on the thread if not Ill check back every day of the week before my hearing date to ensure I havent missed any new posts

Again many thanks

[AndyOrch]

Needs a bit of work ...take a look at one of mine....note how in the defence each point deals with their points...1/2/3/4...then look at yours ..their number first then your response.

 

When responding to a claim a defence either admits denies accepts or refutes...any point you do not reply to will be accepted as an admittance by the court.

 

 

Example

 

Particulars of claim

 

1.By an agreement between Vanquis and the defendant on or around 27/06/2007 (the agreement) VANQ agreed to issue the defendant with a credit card upon the terms and conditions set out therein.

 

2.In breach of the agreement the defendant failed to make the minimum payments due and the agreement was terminated.

 

3.The agreement was assigned to the claimant on 23/2/11.

 

The claimant therefore owes £558.63

 

 

 

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 in the past had financial dealings with (Original Creditor) .

 

3. Paragraph 2 is denied I am unaware of ever receiving a Default Notice pursuant to the sec 88 of the CCA1974 or receiving further Notice of Sums in Arrears pursuant to the CCA2006.

 

4.Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment allegedly dated 23/2/11 from either the Claimant or (Original Creditor).

 

5.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

© evidence any Default Notice or Notice of Breach or Notice of Sums in Arrears.

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

 

5. On receipt of this claim I requested by way of a CPR 31.14 request and a section 77/78 for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to my section 77/78 request and remain in default and with regards to my CPR 31.14 request have stated that they are under no obligation to disclose any documentation on which their claim is based.

 

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

 

7. On the alternative, as 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 crediticon Act 1974.

 

8. 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.

[exasperated]

Andy

Thanks as always being litigant in person Im not sure whether the points in your example apply to me. I know your too busy to write my defence but I am regrettably ignorant of consumer law when its specific.

I do know that they have nothing other than the original application form and no other CCA was provided to me to sign afterwards.

If I can get the judge to set aside I know I can beat them in court with advice from here but therein lies the problem

Here is my attempt

 

Particulars of claim:

 

1.The claimant is the assignee of a debt due in relation to a credit agreement regulated by the consumer credit act 1974 entered into between Bankof Scotland plc (HF) and the defendant.

 

2. Notice of assignment was provided to the claimant in writing. Despite demand for payment the assigned debts remains due.

 

3.The claimant complied with sections iii and iv and annex B of the PDpre-action conduct. And the claimant claims credit card account number xxxxxxxx xxxx xxxx balance of £4xxx.xx as of 12/03/xxxx interest under s69 at the rate of 8% a year from 12/03/xxxx to 13/08/2014 of £2xx.xx and also interest at the same rate up to the date of judgement or earlier repayment at a daily rate of 1.05% AND costs.

 

Proposed Defence

 

 

1) It is not admitted that the defendant owes the sum claimed.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.Paragraph 1 is noted. I have in the past had financial dealings with the Bank of Scotland.

 

2)Paragraph 2 is denied I am unaware of ever receiving a Default Notice pursuant to the sec 88 of the CCA1974 or receiving further Notice of Sums in Arrears pursuant to the CCA 2006.

3)Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment from either the Claimant or the Bank of Scotland.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; 9with a signed valid consumer credit agreement as per english law and

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

© evidence any Default Notice or Notice of Breach or Notice of Sums in Arrears.

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

 

 

 

4) The claimant has failed to supply a CCA in response to my request as required by statute. The account has been in dispute since 2009 and neither the original creditor or subsequent debt collection agencies have resolved the dispute despite numerous requests. (copies in files) On receipt of this claim I requested by way of a CPR 31.14 request and a section 77/78 for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to my section 77/78 request and remain in default and with regards to my CPR 31.14 request have stated that they are under no obligation to disclose any documentation on which their claim is based.

 

4) If the claimant is not in possession of a valid CCA then they are in breach of therule 7 point 1.3 of the SCA consumer credit source book regulation which creates a statutory duty to keep records and to have evidence this debt exists and they are pursuing the correct debtor

 

5) Additionally claimants and their alleged assignors are in breach of regulation 7.5 of the SCA consumer credit source book regulations which require that notice of assignment of any debt must be given to the alleged debtor. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6)On the alternative, as 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 crediticon Act 1974.

 

7)On the alternative, as 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 crediticon Act 1974.

 

 

8) Statement…..This is a proposed draft defence and may be subject to change before filing

 

I respectfully request that the judge give the claimant two weeks to supply a valid CCA and if they cannot that the claim be struck out

[AndyOrch]

Its fine up to ....4/4a/5....6&7 are duplicates but content is correct...lose part 8 they will start laughing and replace with my final line in the example.

 

Your 4 4a & 5 are far too in-depth and not required...never divulge history...you are feeding IND.

 

Simply state in 4 On xxxx I made a section 78 request pursuant to the CCA1974 the claimant has failed to comply with this request and is therefore in default and not permitted to request relief until such time they can comply with my legal request..........finish no more.

 

Remember you only respond to what they state within their particulars...never add history...this is an assignee...all they know is your address your account number and a balance...no other paperwork.

 

Andy

[exasperated]

Andy

Here is an edited version, what do you think? Do I take this with me or send to the court before the hearing date?

Thanks

 

Particulars of claim:

 

1.The claimant is the assignee of a debt due in relation to a credit agreement regulated by the consumer credit act 1974 entered into between Bankof Scotland plc (HF) and the defendant.Notice of assignment was provided to the claimant in writing

 

2. . Despite demand for payment the assigned debts remains due.

 

3.The claimant complied with sections iii and iv and annex B of the PDpre-action conduct. And the claimant claims credit card account number xxxxxxxx xxxx xxxx balance of £4xxx.xx as of 12/03/xxxx interest under s69 at the rate of 8% a year from 12/03/xxxx to 13/08/2014 of £2xx.xx and also interest at the same rate up to the date of judgement or earlier repayment at a daily rate of 1.05% AND costs.

 

Proposed Defence

 

 

1) It is not admitted that the defendant owes the sum claimed.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.Paragraph 1 is noted. I have in the past had financial dealings with the Bank of Scotland.

 

2)Paragraph 2 is denied I am unaware of ever receiving a Default Notice pursuant to the sec 88 of the CCA1974 or receiving further Notice of Sums in Arrears pursuant to the CCA 2006.

3)Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment from either the Claimant or the Bank of Scotland.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; with a signed valid consumer credit agreement as per english law and

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

© evidence any Default Notice or Notice of Breach or Notice of Sums in Arrears.

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

 

 

4) I made a section 78 request pursuant to the CCA1974 the claimant has failed to comply with this request and is therefore in default and not permitted to request relief until such time they can comply with my legal request.

 

5) Additionally claimants and their alleged assignors are in breach of regulation 7.5 of the SCA consumer credit source book regulations which require that notice of assignment of any debt must be given to the alleged debtor. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6) On the alternative, as 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 crediticon 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.

 

Statement…..This is a proposed draft defence and may be subject to change before filing

[AndyOrch]

Particulars of claim:

 

1.The claimant is the assignee of a debt due in relation to a credit agreement regulated by the consumer credit 1974 entered into between Bank of Scotland plc (HF) and the defendant. Notice of assignment was provided to the claimant in writing.

 

2. Despite demand for payment the assigned debts remains due.

 

3.The claimant complied with sections iii and iv and annex B of the PDpre-action conduct.

 

And the claimant claims credit card account number xxxxxxxx xxxx xxxx balance of £4xxx.xx as of 12/03/xxxx interest under s69 at the rate of 8% a year from 12/03/xxxx to 13/08/2014 of £2xx.xx and also interest at the same rate up to the date of judgement or earlier repayment at a daily rate of 1.05% AND costs

 

 

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 although I am unaware of any Assignment between Bank of Scotland plc (HF) and the claimant nor ever received a Notice of Assignment pursuant to Section 136 of the Law of Property Act 1925 It is admitted that I have in the past had financial dealing with BoS plc (HF)

 

3)Paragraph 2 is denied the claimant has never made any demands for payment on any alleged assigned debt nor served any Notice of Sums in Arrears pursuant to the CCA1974.

 

4)Paragraph 3 is denied The claimant has not complied with sections iii and iv and annex B of the PD pre-action conduct.

 

It is therefore denied with regards to the Defendant owing any monies to the Claimant, which has failed to provide any evidence of assignment/balance/breach of agreement as 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;

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

© evidence any Default Notice / Notice of Breach or Notice of Sums in Arrears.

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

 

 

5) Furthermore on xxxxxxxx I made a section 78 request pursuant to the CCA1974 the claimant has failed to comply with this request and is therefore in default and not permitted to request relief or enforcement until such time they can comply with my legal request by virtue of s78(6) of the Act.

 

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

 

7) On the alternative, as 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.

 

8) 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.

[exasperated]

Thanks Andy

I am grateful.

Ill take this with me on the hearing day and hopefully it will enable me to get the judgement set aside.

[AndyOrch]

Your very welcome...lets hope so...you should file a copy with the claimant and court in advance of the hearing...usually 7 days.

 

Best of luck.

 

Andy

[exasperated]

Sorry to trouble you again Andy...

to file with the court I simply send the defence as above including the names of the defendant/claimant and case number?

Have I missed anything

Exasp

[AndyOrch]

Yes add the header with the claim number and also finish with a statement of truth dated.

 

Regards

 

Andy

[AndyOrch]

Hi exasperated further to your PM.

 

The problem with set a side proposed defences...one that as always bothered me is what stance.Here we have your first version which clearly admits the debt (it contains history and factual) therefore its is an admittance.As an admittance it must therefore contain triable reasons for the Judge to consider...his decision is then pivotal on that defence as to whether the set a side is allowed....one is dependant on the other..along with your reasons stated within the N244 application.

 

Submitting a defence at a set a side is completely different to submitting a defence on receipt of a claim...you have different stages to shake off the claim and to dissuade the claimant from proceeding...whereas here the DJ has immediate involvement.

 

Submitting the holding/put them to proof vague defence may in this instance...subject to the calibre of the DJ not work so if you were to consider submitting the particularised defence then it needs to be factual and have merit and list the legal grievances as to why the judgment should be set a side and why you have a valid defence.

 

Ok so far?

 

Reading your intended defence..it appears to me that that the only point we have is the original creditor was and remains in default of this request (section 77/78) and it is your belief that the debt should not have been assigned (this you are also questioning) and that the dispute was never resolved pre assignment.

 

Would that be correct or is there something I have missed?

 

Regards

 

Andy

[batty69]

Some back of the envelope calculations show that about 50% of the judgement amount is interest applied by the court.

 

 

However IND notice of assignment show they were only assigned the debt earlier in the year, so they have been able to claim a vast amount of interest from before they owned the debt. And the only reason they were awarded this amount was because the claim was undefended.

 

 

Surely that is enough grounds challenge the original judgement ?

 

 

Otherwise we would have situations where even claimants with 100% cast iron winnable claims deliberately sneaking judgements through the backdoor because they can then charge whatever interest they want, knowing it can't be challenged later.

[exasperated]

Andy

I appreciate the time your spending helping me with my case, without your advice id be cannon fodder!!!!

Re my PM I just wanted to let you know how the original defence I placed on the thread came about.

In answer to your question above your are absolutely correct that is what I am challenging.So are we to submit just the defence along with copies of the emails they havent responded?

[exasperated]

Hi batty69

It seems a fair point to me I wonder what Andy thinks?

[AndyOrch]

If your date of assignment tallies with the date of sec69 interest IE " s69 at the rate of 8% a year from 12/03/xxxx to " then their calculation is correct.

[exasperated]

Andy

I go working away on Tuesday so will have to deliver my defence to the courts by hand tomorrow.

The last defence you put on here is the what I am delivering along with copies of the email asking for the claimants consent to set aside which they havent responded to.

Ill check back when I return which is two days before the hearing to see if you have added any new posts

Thanks again

[AndyOrch]

I personally would go with the above exasperated...gut instinct tells me that is the proposed defence.

 

PS I have just made a few alterations...so if you have printed ...re print