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    • Good point, hightail.   And assuming Boris wins, how is he going to explain to party members that the EU won't renegotiate? Or doesn't he care because the decision will be back with Parliament?
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    • Future Comms is a Big Con. How to get out of it. Read more at https://www.consumeractiongroup.co.uk/topic/417058-future-comms-is-a-big-con-how-to-get-out-of-it/
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    • Future Comms issues. Read more at https://www.consumeractiongroup.co.uk/topic/416504-future-comms-issues/
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    • This is a bit of a lengthy one but I’ll summerise best as possible.
       
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      the salesman then confirmed that the existing phone would only be disconnected once the new phone was switched on.
      so far so good....
      • 14 replies
melmumof3

HFO CAPITAL/services/turnbull CCJ

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hello all,

im new to CAG so please be gentle.

today, ive received court papers from hfo for a debt ive been disputing for months.

 

 

i requested my CCA from them about july/aug 08,

but they have only ever sent the application form for my m + s account.

 

 

when they took debt over they kindly added £1200 to my then £2600 debt,

and now stands at £4020 after court fees ect added.

 

 

they were wanting a payment of at least £100 p/m which i couldnt afford, so went down route of disputing debt.

 

this is my first court letter, so really dont know what i need to do first.

have tried reading a few posts,

but im still at a loss by the jargon on letter.

firstly i need it moved to nearer home,

how do i do this?

 

i never applied for a subject access thingee, wish i had as on the court paper,

 

 

it states hfo purchased defendants account from ORIGINAL lender 26th march 2009.

i have a notice of assignment,

 

 

this wasnt sent from marks and spencer, as i contacted them, and they confirmed they didnt send this HFO did.

the date on this letter says 30th july 08. previous to this, moorcroft dca owned the debt.

 

 

i had requested my CCA from moorcroft, who sent letter to say they dont have it, a few months passed

and i received the card from first logistics (aka HFO), and this is where its ended up.

 

 

i really just need to know what i need to put on court papers.

do i dispute all debt or some,

what does juristicion mean?

 

should i contact TS for this too,

as this shouldnt have been sold should it on to hfo when it was already in dispute with moorcroft....

 

 

oh i dunno

im really scared

please someone help

 

 

thankyou

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Ok...don't be scared...will flag your message for you to see if site team can respond.

 

As they have served papers then you can use CPR ( I get confused between CPR18 and CPR31 so won't go any further on this!) to get all the information you need.

 

Do you have any paperwork you post on here such as your POC and default notice? Make sure you remove any personal information.


If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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Ok...don't be scared...will flag your message for you to see if site team can respond.

 

As they have served papers then you can use CPR ( I get confused between CPR18 and CPR31 so won't go any further on this!) to get all the information you need.

 

Do you have any paperwork you post on here such as your POC and default notice? Make sure you remove any personal information.

thanks welshmam,

no cant find default notice from m&s and when the debt was bought by moorcroft

 

 

i paid it for a few months, before i found i needed to CCA all my debt agencies.

whats a POC?

 

 

ive all letters from moorcroft and hfo,

obviously i need to sort out the court paper firstly,

but i heavily dispute it,

as the original amount was for £2600,

and we now are up to £4020,

this is hfo who has added all these charges on,

and they were the least heplful, and wouldnt back down from a payment of £100 p/m which i havent no way got.

 

 

thanks for responding tho, wasnt sure i posted in the right place lol

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POC is their particulars of claim, it is part of the court documents they sent you, we can help here as they often have glaring errors in their POCs, if you read a thread by PANK they have just filed their defence against these twits. Somebody will be along shortly to help further.

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thanks welshmam,

no cant find default notice from m&s and when the debt was bought by moorcroft i paid it for a few months, before i found i needed to CCA all my debt agencies. whats a POC? ive all letters from moorcroft and hfo, obviously i need to sort out the court paper firstly, but i heavily dispute it, as the original amount was for £2600, and we now are up to £4020, this is hfo who has added all these charges on, and they were the least heplful, and wouldnt back down from a payment of £100 p/m which i havent no way got. thanks for responding tho, wasnt sure i posted in the right place lol

 

Well, as it happens Mel, I had an M&S DN issued a couple of days ago and I believe that it is invalid and the chances are that yours might be so too!!

 

Take a look here...

 

http://www.consumeractiongroup.co.uk/forum/store-cards/192779-m-default-following-cca.html

 

 

You need to start compiling a list of documents that you want from them...can you post up the particulars of claim to begin with please??


If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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Hi and welcome, dont worry help is at hand, on the front of the claim, and maybe on the next page are the "particulars of claim", can you type up what it says, )dont put anything which could identify you)

 

What is the date on the claim?

 

Who is the claimant? (on the front of the claim)

 

How old is this account?


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Well, as it happens Mel, I had an M&S DN issued a couple of days ago and I believe that it is invalid and the chances are that yours might be so too!!

 

Take a look here...

 

http://www.consumeractiongroup.co.uk/forum/store-cards/192779-m-default-following-cca.html

 

 

You need to start compiling a list of documents that you want from them...can you post up the particulars of claim to begin with please??

now im really confused ... and scared lol.. im not good with things like this takes a look to get my head round.

ok on the POC, its says this

 

the assignee HFO capital ltd purchased the defendants account and all rights and obligations attaching thereto from the original lender on 26th march 2009. a letter of assignement (

 

i dont seem to have a default notice from M&S. i fell into arrears with them and have a letter dated 3/12/07 saying that, and then have no paperwork, until moorcroft contacted me letter dated 16/01/2008. the account with m&S was opened 13/10/03 and i had been paying up until latter part of 06 when i went on a DMP with CCCS, DMP cancelled 10/07 due to mortgage arrears, as id been in problems with M&S before i dont think they hesitated so sold debt on. HFO sent me paperwork, and sent a notice of assignment dated 30/7/2008. this letter has M&S logo, when i contacted M&S regarding it they said they hadnt sent it or printed it. M&S said they no longer owned debt so account was closed and i couldnt request anything to do with account....

i hope this isnt too confusing.. ive a banging headache grrrr

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If the account was terminated by M&S and they had supplied you previously with a dodgy default notice, then my understanding is that they can only claim arrears stated on the default notice and not the full balance or any further charges etc.

 

Don't panic just start preparing a list of documents that you think you might need and I'll do a bit more searching for you also until/unless someone else comes along!!


If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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Have a look at this thread here...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html#post1707671

 

 

This letter was drafted by X20 a reputable member...but perhaps the thread will also put the disclosure process in context for you Mel...

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

I hope this draft will prove useful to site members experiencing uncertainty as to how best to deal with the claim where they do not have what are highly relevant documents.

 

Next time, I will produce a draft application notice for when the Claimant fails to comply with a CPR 31.14 Request.

Edited by WelshMam2009

If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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Ok, if you live in england, you cant contest the courts jurisdiction.

 

Go online to MCOL (using the password on the front of the claim form), and acknowledge service, make sure you intend to defend ALL of the claim, dont submit a defence at this stage.

 

You will then have a total of 33 days from the date on the claim to file your defence

 

Then you need to send The otherside a CPR request, will post this up later, unless someone else does meanwhile.

 

Take some paracetamol and stop worrying, this can be sorted out, you will get all the help you need on here.

 

Welshmam has put up the CPR letter above...Thanks

  • Haha 1

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Have a look at this thread here...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html#post1707671

 

 

This letter was drafted by X20 a reputable member...but perhaps the thread will also put the disclosure process in context for you Mel...

hi again, ok paracetamol taken lol...

so do i just send this letter to turnbull rutherford (the address where all paperwork has to go to)

 

thanks for this its much appriciated

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yes thats right, send by recorded, keep the receipt


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Ok, if you live in england, you cant contest the courts jurisdiction.

 

Go online to MCOL (using the password on the front of the claim form), and acknowledge service, make sure you intend to defend ALL of the claim, dont submit a defence at this stage.

 

You will then have a total of 33 days from the date on the claim to file your defence

 

Then you need to send The otherside a CPR request, will post this up later, unless someone else does meanwhile.

 

Take some paracetamol and stop worrying, this can be sorted out, you will get all the help you need on here.

 

Welshmam has put up the CPR letter above...Thanks

thankyou for this.,....

i live in england yes. can i get this moved to my local court... ? how would i do that???

 

so i need to send this CPR letter to HFO/ turnbull rutherfords. ok does it matter that i dont understand half what it means??? lol..... gosh, i need a degree in law im sure.

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It will be moved to your local court automatically at a later stage, dont worry you wont have to go to northampton, just make sure you acknowledge, defending all of the claim, thats the main thing at this stage, you can do it by post if you wish using the form in the pack.

 

The CPR letter is simply requesting the documents they will rely on .


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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It will be moved to your local court automatically at a later stage, dont worry you wont have to go to northampton, just make sure you acknowledge, defending all of the claim, thats the main thing at this stage, you can do it by post if you wish using the form in the pack.

 

The CPR letter is simply requesting the documents they will rely on .

ive requested the CPR letter, and acknowledged the court letter online. what is the next step now?? i feel i should be doing something?? i have 30 odd days to file defense right??? am i waiting on HFO to send me the documents ive asked for in the CPR letter. sorry if im asking too much info, im just really nervous, and feel helpless first time getting anything to do with court etc.....

thanks in advance mel

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You need to wait a while to see if HFO come up with anything....whats the date on the claim form?, the max date to file your defence is 33 days from then.

 

You need to aim to file your defence about a week before the deadline


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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You need to wait a while to see if HFO come up with anything....whats the date on the claim form?, the max date to file your defence is 33 days from then.

 

You need to aim to file your defence about a week before the deadline

hi again, date is 3rd april, i received papers on the 4th. would i be right in thinking i wait now til approx 28th april.

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So the deadline is 6th may, file around the end of this month.

 

Spend some time reading the threads on here to get to know about procedures, and how HFO operate.

 

Read especially the WON threads

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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hello again,

looking for some more advice please as really dont know what i do next. i received the 'defence'(is this right??) from turner rutherford. this is how it reads;

 

Enclosed is the following documentation referred to in our clients statement of case.

a) executed credit agreement (this is still the application form, and clearly states at top of page its an application form)

b)statement evidencing your balance pre- assignment (this has my last 6 payments on it)

c) notice of assignment (this was sent from HFO, it came in HFO envelope with M&S logo on top, when i rang M&S they confirmed they hadnt sent it themselves)

d)default notice (the default notice has HFO logo on it, it wasnt an M&S default notice, although it has date of default 14/2/2006, but this was went it was with OC)

 

they have sent me their terms and conditions also, along with M&S credit card 'important information' which has no personal details as to interest rates, states charges for defaulting, over limit etc, and credit card terms and conditions.

the letter goes on to say:

we believe the enclosed credit agreement complies with s.60, s 61 of the Act by virtue of including all the prescribed terms under the Consumenr Credit (agreements) regulations 2004 and including both your signature and that of marks and spencer under s.189(3) which states;

"any provision of this act requiring a document to be signed is complied with by a body corporate if the document is sealed by that body"

Furthermore, our clients insist they have complied with your statutory request under s.78 and we believe that your reliance on our clients commiting an offence under s.78(4) (b) is misconeived as it was repealed by consumer protection from unfair trading regulations 2008/1277:Sch.4(1) para.1.

your contention that the agreement remains unenforceable is incorrect as the wording of the section makes clear that the agreement is only unenforceable whilst the default continues. we query your suggestion as to how the agreement is irrevocably unenforceable when our client has previosly complied with your request?

we trust this letter is a satisfactory response to the issues you have raised thus far and we await your proposal for full settlement or alternatively your defence.

 

i really wanted to fight this, as they kindly added £1500 to my debt, and now court costs too, and they were wanting minimum £100 p/m to pay debt, which i dont have. but i feel lost and havent really a clue what i do now.

i thankyou for reading, and am truly grateful for advice and support given

regards mel

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They are talking rubbish, and they CANNOT add any money to the debt as they are still not legally able to do so. I would send their letter to Trading Standards as it is wrong for them to assume that they have complied with your request. As court papers have now been issued they need to send a lot more than just an application form, anyone can fill in a form but it doesn't mean that an agreement to provide credit exists....

 

More help will be along later on.

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They are talking rubbish, and they CANNOT add any money to the debt as they are still not legally able to do so. I would send their letter to Trading Standards as it is wrong for them to assume that they have complied with your request. As court papers have now been issued they need to send a lot more than just an application form, anyone can fill in a form but it doesn't mean that an agreement to provide credit exists....

 

More help will be along later on.

hi sillygirl,

do you think its rubbish?? im new to the court action bit, so way out of my depth now. HFO have never sent any statement when ive requested it as to how they got to the figure they have. plucked figures out of sky i reckon.

as regards to the application form, ive lots of these in my possession, they sent 2 last month and 1 the month before.

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The offence bit is correct as that was dropped, however, they are still in default if they have not supplied a true copy of your agreement.

 

First thing to remember Mel is that they will bully, harrass and threaten you in an attempt to get every single penny out of you. Just ignore it if you can.

 

As regards them adding fees etc on, then I honestly didn't think that they were able to do this as you do not have a contract with HFO allowing them to do this...am sure there is a letter around about this somewhere.

 

The court costs will be shown on the particulars of claim and should reflect actual costs. As the debt is relatively low then you might be able to get it moved to the small claims court which will eliminate you having pay the other sides legal fees although I think there may be some disadvantages to this.

 

Have you responded to the court stating that you intended defending the claim as you will only have a limited amount of time to do this.

 

You then have to start preparing your defence...I'll copy something on here in a mo so that you can see what it should look like...


If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

Restons MBNA -v- WelshMam

 

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Take a look at this for a start Mel...this is a typical defence regarding dodgy CCA's.

 

REMEMBER...each case is individual and not all of this will be relevant to you. Just amend to suit and try not to use verbatim...

 

In the Northampton County Court

 

XXXXXXXXXX Claim number

 

 

 

 

 

 

 

 

Between

XXXXXXXXXX- Claimant

 

and

 

XXXXXXXXXXXX - Defendant

 

Defence

 

 

 

 

1. 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.

 

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

 

3. 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;

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding 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 Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

 

b) 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.

 

c) 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. In respect of that which is denied, on XXXXXXXX I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 77(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

5. Section 77 (4) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s77 (4) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

6. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s77 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

7. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on XXXXXXXX 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, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks 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. (Attached marked 1)

 

9. To Date the claimant has failed to comply with 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.

 

10. The claimants failure to provide the credit agreement and other documents referred to within it, along with copies of the default notice impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person

 

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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 amount of credit 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

 

12. I note that these prescribed terms must also be within the Agreement and not in for example a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

 

13. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

 

14. 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."

 

 

15. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

16. 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

 

17. Notwithstanding point 16, 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)

 

18. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974.section 87 makes it clear that a default notice must be served before a credit can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

19. 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

 

 

20. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses 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

 

21. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's 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 and Practice Direction 16.

 

22. Additionally since the claimant has failed to discharge its obligations under Section 77(1) Consumer Credit Act as stated in point 6 and 7 of this defence, it is requested that the claimant case be struck out pursuant to section 77(4) Consumer Credit Act 1974

 

23. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

24. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

25. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

26. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I XXXXXXXX, believe the above statement to be true and factual

 

 

Signed .....................

 

Date


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This is another which breaks down the faults into component parts...it is different from yours insofar as this is a claim and not a defence.

 

Also, remember that you can add your own costs at, I believe, £9.25 per hour, for researching and responding etc. However, this will be irrelevant if you try and get it moved to the small claims...

 

1. On the 03/12/2007 The Claimant wrote to the Defendant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974. The Defendant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

2. On the 12/12/2007 in response to the Claimants request I received a copy of an application form from the defendant (Attached to this claim marked exhibit A) on inspection the Claimant found the form supplied was illegible and therefore did not comply with regulation 2(1) of Statutory instrument 1983/1557 which states

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

3. Therefore it is averred that the Defendant has failed to discharge their obligations under section 78(1) of the Consumer Credit Act 1974 and as a result are not entitled by way of section 78 (6) of the Consumer Credit Act 1974 to enforce this agreement while their non compliance continues

 

4. Notwithstanding point 3, it is noted that the form claimed to be a valid credit agreement (exhibit A) does not contain any prescribed terms as laid out in Statutory instrument 1983/1553 (Consumer Credit (Agreements) Regulations 1983)

 

5. 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

10. The terms laid out in point 5 terms do not appear to be contained within the agreement

 

Document Headed Barclaycard Conditions

 

6. In addition to the Application form supplied by the Defendant in response to the Claimants request there was a separate sheet entitled Barclaycard Conditions. There are certain required terms within this document; however this document does not appear to be linked to the Application form. In addition the Claimant submits that this does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as the Regulation say that all the schedule one information should be contained "within the agreement" not on a separate document headed Terms and Conditions or in this case Barclaycard Conditions.

 

7. The Claimant also submits this document shows no relation to the application provided and there is no clear link between the application form (Exhibit A) and the Barclaycard conditions (Exhibit B) therefore the claimant puts the Defendant to strict proof that these Conditions of Use actually relate to this application form. In respect of points 6 and 7 I refer to the following cited from. Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

8. On the 07/01/2008 the Claimant wrote to defendant outlining several concerns with regards to the legibility of this application form and informing them that they had failed to comply with the requirements of the Consumer Credit Act 1974.

 

9. On the 11/01/2008 the Claimant received a reply from the Defendant (see attached marked Exhibit C). The Defendant stated (Quote)“ we aim to resolve matters by the 06/02/2008 “ The Defendant has not written since therefore has failed to address the Claimants concerns. Furthermore in a telephone call dated 15/02/2008 the defendant insisted that they have complied with the requirements of the Consumer Credit Act 1974

 

 

Enforcement of the Agreement

 

10. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 4 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

 

11. With regards to the Authority cited in point 10, 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."

 

12. The Defendant 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 Default Notice

 

13. The Claimant submits that in addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

14. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

15. The default notice served by Mercers on behalf of the defendant did not contain the required statements in the required form for the following reasons

 

The notice failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2

 

The notice also failed to include the following statement

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH as required by paragraph 4, in the Defendants version the statement is set out in lower case and therefore contrary to the regulations.

 

Furthermore the notice failed to set out the notice required by paragraph 5

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]" again in the defendant’s version it is lowercase and not as prescribed

 

 

Finally the document does not contain A statement in the following form--

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

16. It is noted that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the default notice is invalid and further enforcement action should not be taken until such time as a compliant notice is issued

 

17. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

 

 

18. It should also be noted the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

19. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) should render it invalid

 

Misappropriation of funds and harassment

 

20 On the 21/12/2008 the Claimant received a letter from the Defendant to notify that they had exercised their legal right to offset arrears, and that the sum of £82.00 had been withdrawn from the Claimant’s Barclays bank account. It is the Claimant’s contention that the defendant has no legal right to take such monies without the claimant’s consent whilst remaining in default of a sec 78 request. Furthermore, the Defendant has continually harassed the Claimant by way of a barrage of threatening and intimidating telephone calls as well has sending out agents to the claimant’s property after it had been specifically requested that all correspondence should be put in writing.

 

 

 

21 The Claimant submits that this conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Defendant's behavior is entirely vexatious and wholly unreasonable. 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 28/05 /01 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

22 In respect of the defendant's unlawful charging regime. The Claimant challenged the said charges applied to the Claimant's account by way of unenforceable penalties. On the 4th of February 2008, the defendant refunded all charges including interest totaling £166.00, which was then credited to the Claimant’s account balance. This implies that the defendant is continuing to operate the account whilst in default, and that, therefore, this constitutes a payment to the account, which they are not entitled to.

 

 

Damage to the Claimant's Credit Reputation.

 

The authority on this issue is cited from Kpohraror v Woolwich Building Society [1996] 4 All ER 119; as follows

 

It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth

century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to [his]

credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his

credit' (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of

individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities,

as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in

holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.

 

THE CLAIMANT CLAIMS.

 

 

The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks; Substantial damages from the Defendant to the value set by the court and for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

 

Including the sum of £166.00 including interest at 8% and accruing up until judgment

 

The sum of £82.00 including interest at 8% and accruing up until judgment.

 

The Claimant seeks a declaration from the honourable court to determine rights of both parties by virtue of sec 142 Consumer Credit Act 1974.

 

Additionally, the Claimant requests an order from the Court under s.14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage, from the Defendants internal records and order the Defendant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies;

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

 

The Claimant further claims the Court fee of £75.

 

 

41.3. Costs, at the discretion of the Court


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Restons MBNA -v- WelshMam

 

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Hi again, most of this as sillygirl says is absolute rubbish.

 

The thing that stands out to me is the fact that they have provided you with a fake DN (the judge is going to love that, if it ever gets that far), this alone is enough for you to win.

 

Dont worry i will help you with the defence.

 

Do you have a scanner? Can you post up the "agreement" they just sent


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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