Mercers-Barclaycard claimform - faulty DN **WON**

[paulwlton]

the effect of s59 is that the agreement is void only to the extent that it binds you to enter into a prospective credit agreement . So until you chose to enter the agreement, you can back away at any point.

 

But you did chose to enter the agreement.

 

I see where your coming from. Hmmmmmm

[Jeff2000]

I see where your coming from. Hmmmmmm

 

 

Hi,

 

 

Hmmmm indeed! And I thought we were doing so well!

 

Anyway, many thanks for everyones help and input. It really is appreciated!

 

One other thing. I have discovered that I require further copies of statements going back to the start of the account. Will this mean that a holding defence need to be put forward?

 

 

Regards, Jeff.

[slick132]

Hi Jeff,

 

Get an SAR letter off to BC for the state's required asap.

 

You could also try calling them to see if this can be done more quickly - explain that you've rec'd a Court Claim and need the state's urgently. Don't bother with normal cust'r svs - there's another office which will d/w your request faster - if I come across it, I'll post back.

 

Was your thread in the debt forum - I think it should go back there so you get the advice you need more readily.

[paulwlton]

Try this.

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, I request you to provide me with the information and documents detailed below.

 

I request that the information should be furnished within fourteen days of the receipt of this letter. If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Barclaycard.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I must advise you that if the information is not forthcoming, it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.

 

Yours sincerely,

 

XXXX (type, don't sign).

[pt2537]

Right thats your thread back where it belongs Jeff, in the debt forums

 

the letter that paul has posted is ideal to use if you havent already done so

 

i will be back when i have a free moment to go over the defence side of things, unless toms feeling generous of course:)

[Jeff2000]

Hi Jeff,

 

Get an S.A.R - (Subject Access Request) letter off to BC for the state's required asap.

 

You could also try calling them to see if this can be done more quickly - explain that you've rec'd a Court Claim and need the state's urgently. Don't bother with normal cust'r svs - there's another office which will d/w your request faster - if I come across it, I'll post back.

 

Was your thread in the debt forum - I think it should go back there so you get the advice you need more readily.

 

 

Hi,

 

 

I think it was in one of the debt forums originally.

 

 

Jeff.

[Jeff2000]

Right thats your thread back where it belongs Jeff, in the debt forums

 

the letter that paul has posted is ideal to use if you havent already done so

 

i will be back when i have a free moment to go over the defence side of things, unless toms feeling generous of course:)

 

 

Hi,

 

 

Once again, many thanks for all the help. I shall be sending a letter to Barclay's along the lines of Paul's letter asap.

 

I have done a spreadsheet for the charges (excluding the missing statements). I will also do a spreadsheet for the PPI this weekend.

 

 

Regards, Jeff.

[pt2537]

Jeff, off the top of my head, you have another week or so before your defence is due dont you?

[slick132]

PT,

 

The MCOL issue date was 24th Janaury (per post #20).

[pt2537]

PT,

 

The MCOL issue date was 24th Janaury (per post #20).

Ah Booger

 

sorry got so many things going on at the mo trying to keep track is posing a few problems

 

right then. okies, a holding defence is the best we can do till the disclose the documents

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

jeff2000- 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 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 as laid out in Practice Direction 16. Paragraph 7.3.

 

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. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

 

The Credit Agreement

 

5. On the xx/xx/2007 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974. The claimant 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.

 

6. On the xx/xx/2007 in response to my request I received a copy of an application form from the claimant (Attached to this defence marked XX1) on inspection I found the form supplied was very hard to read 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

.

7. Therefore it is averred that the claimant 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

 

8. Notwithstanding point 7, it is noted that the form claimed to be a valid credit agreement (exhibit XX1) does not contain any prescribed terms as laid out in Statutory instrument 1983/1553 (Consumer Credit (Agreements) Regulations 1983)

 

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. The terms laid out in point 9 terms do not appear to be contained within the agreement

 

Document Headed Conditions of Use

 

 

11. In addition to the Application form supplied by the claimant in response to my request made on xx/xx/2007 there was a separate sheet entitled Conditions of use. There are certain required terms within this document, however this document does not appear to be linked to the Application form. In addition I consider 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 Conditions of Use

 

12. I suggest that this document shows no relation to the application provided and there is no clear link between the application form (Exhibit XX1) and the Conditions of Use (Exhibit XX2) therefore I put the claimant to strict proof that these Conditions of Use actually relate to this application form

 

13. On the XX/XX/2007 I wrote to Barclay card outlining my 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.

 

14. On XX/XX/2007 I received a reply from the claimant see attached marked (Exhibit XX3). The claimant failed to address my concerns and insisted that they had complied with the requirements of the Consumer Credit Act 1974

Build up to proceedings

 

15. The claimant's representative's optima wrote to me on the xx/xx/2007 informing me that they would be instigating proceedings in x days. They did this even though the account was dispute and it had been drawn to the attention of the Claimant that this was the case. Additionally the claimants response to my letter disputing the account and the credit agreement was received after the letter before action, thus giving me little chance to attempt to resolve this dispute before the claimant instigated proceedings

 

16. I believe this in itself is unreasonable and not in accordance with pre action protocols laid down in the Civil Procedure Rules in that the claimant has failed to take reasonable steps to resolve this dispute before instigating litigation

 

 

Enforcement of the Agreement

 

17. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 9 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

 

18. With regards to the Authority cited in point 17, 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."

 

 

Failure to enclose documents relied upon in the Particulars of Claim

 

19. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, 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.

 

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

 

The Default Notice

 

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

22. 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)

 

23. 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.

 

24. The default notice served by Mercers on behalf of the Creditor 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 claimants version the statement is set out in lower case and therefore contrary to the regulations

 

also 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 claimants 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".

 

25. I note that the regulations do not allow any variation in the form of these statements and there fore 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 complaint notice be issued

 

26. 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.

 

 

27. I note 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 makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

28. 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

 

Conclusion

 

29. The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information. In addition I believe the claimant has acted unreasonably in bringing this action and further believe the claimants action should be viewed as vexatious. It is requested that the court strike out this claim as there is no prospect of success in view of the matters pleaded above

 

30. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute. The claimant transferred the debt to a Debt Collection Agency while the account was subject to a dispute, which is a clear contravention of the Office of Fair Trading Guidelines on Debt collection. The claimant and its representatives have subjected me and my family to a unacceptable level of unwarranted telephone calls and it is averred that such actions amount to harassment and has caused an unacceptable level of distress for my family, especially since they ignored the fact that their document purporting to be a credit agreement failed in its entirety to comply with the CCA 1974

 

31. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

32. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

33. 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 Act 1970. Furthermore, the Claimant's behaviour 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 xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

 

 

right theres a defence that i had on my pc, which is surprisingly close to your case as it stands

 

however it may be good to add the Wilson Versus Hurstanger Ltd case as it covers prescribed terms

[paulwlton]

Quality pt.

 

I will be using snippets of that for my own POC against Barclaycard.

 

Paul

[pt2537]

Thanks Paul,

 

ive done a couple of barclays-mercers-optima defences recently

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/107600-getting-idiots-write-back-17.html#post1382085

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/119668-lba-optima-leagal-services-8.html#post1380021

 

you may find some useful bits on them too

[citizenB]

What really puzzles me is that having sent your letters off to Mercers, they are still sending out letters (to others) exactly the same as in #28 which apparently are incorrect?

 

Good luck with your claim Jeff 2000

[Jeff2000]

Hi,

 

 

Excellent stuff pt! Once again, many thanks.

 

 

Jeff.

[Jeff2000]

Jeff, off the top of my head, you have another week or so before your defence is due dont you?

 

 

Hi,

 

 

By my reckoning, the defence needs to be submitted by Feb 26th!

 

 

Jeff.

[pt2537]

oh well

 

you still have a little time,

 

i just noticed a small error and have had to make an amendment, sorry, i usually spell check and proof read my work but it appears this one slipped through the net

[Jeff2000]

Hi,

 

 

The letter asking for information relating to the claim has been sent.

 

Sent a copy to their sols, Optima as well!

 

Don't suppose I'll get anything before the defence deadline, if at all!

 

 

Jeff.

[Jeff2000]

right theres a defence that i had on my pc, which is surprisingly close to your case as it stands

 

however it may be good to add the Wilson Versus Hurstanger Ltd case as it covers prescribed terms

 

 

Hi pt,

 

 

In the above defence you have so kindly posted, you refer to the Wilson v Hurstanger case. Is this the bit you are refering to?

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 Schedule1."

 

 

Also, would I be able to print off the defence and attach it to the court papers to post?

 

Will I be able to fax a copy of the defence in case there is a delay with the post for some reason? I do intend to allow a couple of days or so extra for posting!

 

Many thanks again!

 

 

Regards, Jeff.

[Draxus]

Hi all, well i'm another number on the Mercers dialing list.

 

It is my wifes card but i am dealing with the creditors as she has the one and i have a few which incidentaly have all taken my token payments very well, but the usual story applies to me. bully boy tactics threataning to collect my doorstep!

 

They have been giving us phone calls and sending us letters for a few months with the same responce from us "can't have what i havn't got"

only found this forum 2 days ago and havn't stopped reading and gaining more confidence as i do. i have now decided to speak to them by letter not by phone but they took the disgusting act of taking £64 pounds direct from my wifes barclays account yesterday. needless to say we have now cleared the account of its money so they cant do it again.

 

These people are the lowest form of ameoba and i'm glad i found your site.

 

this is just realy starting for us so we'll keep you updated

 

keep up the good work:grin:

[Jeff2000]

Hello everyone,

 

 

I'm not sure how important this might be but,

 

I've just been sifting through some of the letters that I have received from Barclaycard and Mercers etc, and:

 

The default notice, (dated 19 Sep '07) that the claim refers to isn't the first default notice that I have been sent by Mercers!

 

I have one dated 10 Aug '06. Then one dated 24 Oct '06. Then one dated 24 Jan '07.

 

They are basically the same in content as the one posted earlier in this thread.

 

So, does this have any bearing on this case?

 

If I was first defaulted way back in August 2006, what agreement have I defaulted on in October 2006 and January 2007 and finally in September 2007?

 

Any thought please!!?

 

 

Regards, Jeff.

[Draxus]

Hi All,

 

Just wanted a bit of advice, had a letter today from BC saying that they have exercised there right to take funds from my wifes bank account(£64.70) and if i dont pay them what i owe them they'll do it again.

 

I supposed i cant argue with there legal right but i am on JSA my wife works 5 hours a week and gets £28 she receives the usual child benefit for 1 child and family tax credit. what i would like to know is if my wife changes how she recieves her wages can BC take what is left which is effectivly benefits provided by the government for living and child upbringing costs. we could take the money straight out of the account but BC will know when and how she gets her money and push a button before we get to a cashpoint.

 

we are currently going through the rigmorole of the phone calls and letters we are paying them £10 per month which they dont want to accept and the barstewards are taking money that can pay other debters incedentaly all of which are understanding about our situation.

 

If anyone has had money taken from there Barclays account to pay some of there debt how did you respond.

 

:grin:

[robcag]

Hi Draxus

 

If I were you I would open a 'basic' bank account elsewhere ASAP, then when it is functional phone the benefits people and get your payments transferred to the new account.

 

Rob

[pt2537]

Hi pt,

 

 

In the above defence you have so kindly posted, you refer to the Wilson v Hurstanger case. Is this the bit you are refering to?

 

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 Schedule1."

 

 

Also, would I be able to print off the defence and attach it to the court papers to post?

 

Will I be able to fax a copy of the defence in case there is a delay with the post for some reason? I do intend to allow a couple of days or so extra for posting!

 

Many thanks again!

 

 

Regards, Jeff.

 

HI Jeff,

 

yes thats the piece from wilson i was refering to

 

yes you should send if possible a hard copy of the defence to the court,attached to the forms

 

yes you would be able to fax it as a back up but you would need to make sure you have the courts fax no etc

 

for some reason i didnt get an email notifying me that you had posted on the thread so sorry for the delay in getting back to you

[Jeff2000]

Hi Draxus

 

If I were you I would open a 'basic' bank account elsewhere ASAP, then when it is functional phone the benefits people and get your payments transferred to the new account.

 

Rob

 

 

Hi Draxus,

 

 

I got a basic account at NatWest. You get a solo card with it. Go to your nearest branch with 2 pieces of proof of address. You should get your account number straight away!

 

 

Jeff.