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Phantom943

Arrows/Restons stayed Claim M+S credit card debt - Application to lift Stay

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Well the agreement must correspond with their particulars of claim..if its a credit card or a store card...it cant be both.


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Their POC is very Vague and consists of the foillowing:

 

The Claimant claims payment of the overdue balance from the defendant/s under a contract between the defendant/s and Marks and Spencer Financial services PLC dated on or about Oct 14 1989 and assigned to the Claimant on Feb 21st 2013.

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as their poc is so very vague

so should your defence.

 

save all the rest for IF it ever gets to witness statement stage..

 

pers i'd just say they have failed to fully comply with your CCA request....?

 

and not give the details yet.????


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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I see where you are coming from with this,

 

however the court's direction was to file a Substansive defence by Friday.

 

I ve made my point about the so called agreement and highighted a few other omissions and had a dig at their second witness statement.

 

Will post the draft up in a while once ive completed it.

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Heres my draft defence:

In the xxxxxxx County Court

Claim number xxxxxxx

 

Between

Arrow Global Limited- Claimant

 

and

 

xxxxxx- Defendant

 

Defence

 

1. I xxxxxxxxxxxxx am the defendant in this action and make the following statement as my amended defence to the claim made by Arrow Global Limited.

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and practice direction 16 of the Civil Procedure Rules.

 

3. On 26/10/2016 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit CGQ4) I requested the claimant supply this information within 12 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documentation.

 

4. The claimant refused to supply the requested information within the requested time frame so accordingly I could only file a minimal defence.

 

The Claimant has kindly provided evidence of this (see Exhibit CGQ4, Letter dated 22/11/2016) I respectfully ask the court to consider a letter from the claimant which was contained within their witness statement (see Exhibit CGQ3, letter dated 13/09/2016), which clearly states Notification of Account Transfer to New Agency, and clearly states that all enquiries, correspondence and payments should be directed to Restons.

 

The original claim form also included such references; therefore, I can see no reason other than to frustrate the proceedings why the claimant would refuse any requests for information. However, the claimant has supplied some of the information, and now after consideration of the documents which have been supplied I can now make a fully particularised defence to the claimants Particulars.

 

The Claimant has submitted a second Witness Statement: 1st Statement of Amy Wagg.

Contained within that statement are a number of comments which are denied by the defendant.

 

At 5.2 the claimant assets that it was not in default of the Section 78 request

“she made a request pursuant to Section 78 of the Consumer Credit Act 1974 prior to legal proceedings being issued…”

And refers to Paragraph four of the defendant’s witness statement, the defendant’s actual words are totally contrary to Wagg’s statement in that there is absolutely no doubt the defendant clearly stated:

 

“4. Save insofar of any admittance it is accepted that a contractual relationship did once exist between myself and Marks & Spencer Financial Services Plc. On receipt of this claim I could not recall the precise details of the agreement or any debt and sought clarity by way of a section 78 request.

 

At the time of submitting my defence the claimant was in default of this request and refused to comply with this request and was therefore unable to proceed and enforce the claim or request any relief.

 

The claimant is put to strict proof to verify and confirm that the exhibits at paragraph 2 marked CGQ2 are the true terms and conditions as issued at the time of inception and execution of the agreement.

 

The claimant further asserts at 5.3 that: The Defendants request was not compliant in that it did not contain the Defendant’s signature and the statutory fee was made payable to my firm, no valid request has been made”

 

The claimant fails to cite any law where it states any such request must contain a signature or provide any evidence of such a requirement, the issue regarding the statutory fee is addressed above at the beginning of paragraph four.

The request was and remains in default

 

5. After consideration of the documents referred to in point 4; I consequently deny the allegations made in the claimant’s particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

 

6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

7. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

8. 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).

 

9. 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. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document headed Terms and conditions.

 

There is no apparent link between the terms and conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

11. Furthermore, on the copy of the purported credit agreement supplied and that the claimant exhibits as CGQ1 which they refer to as a true copy of the executed agreement. It is averred that the disclosure purports to no more than an application form a pre-executed application form which is deficient of the prescribed terms.

 

This renders the exhibit as unenforceable pursuant to section 127 (1) & (2) of the CCA1974 as the alleged date of the agreement is dated 14th October 1989 and the amendments of the CCA2006 are not retrospective to agreements entered into pre-April 2007.

Furthermore the exhibit comprises of a single side (front) which is incomplete and barely legible.

 

12. 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 misstated.

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. Furthermore 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. 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."

 

15. Therefore, I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

16. should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement unenforceable.

 

17. In addition to the credit agreement being irredeemably flawed, the claimant has failed to provide any evidence that a Default Notice has been served under s87 (1) Consumer credit act 1974. Thereby the alleged original creditor has failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

The claimant is therefore put to strict proof that such notice was served as required.

 

The notice should clearly state the date by which the breach must be remedied before and allow the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

18. The claimant asserts they have been assigned the account in question but has failed to provide any evidence other than hearsay to confirm their position with references to the claimants in house correspondence, furthermore they assert in Quinn’s Witness statement at 7.3 “It is the claimants position that a notice of Assignment was issued to the defendant around the time that her account was assigned by Marks and spencer Financial Services PLC.”

 

The Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. 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).

 

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. The claimant has had in excess of fourteen months in which to supply the requested documentation, and to date has failed to produce any evidence offering a reasonable excuse as to why it has failed to do so.

 

Statement of Truth

 

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

 

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

 

Date

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Any feedback on the above draft defence would be welcomed.

Many thanks.

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Its far to in depth in my opinion...dont forget the claimant has to respond again to your defence and decide if they wish to continue...then each party will be expected to submit a witness statement with evidence...that is the time to go into depth.....

 

All you are doing above is feeding the claimant will all the history...possible flaws...and allowing them to correct matters before deciding whether to continue to allocation.

 

You only respond to the particulars of claim in an initial defence...factual but vague.....same as the claimants particulars.

 

Andy


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