Just been to court/CL finance**WON IN COURT**

[tomterm8]

Yes, I think I do understand, but maybe I have got it wrong.

I was sent a bad copy of a credit card application which I had signed.

No credit amount was mentioned or APR; but it does say in a little box that this is a credit agreement and I have a cooling off period.

 

From reading other threads most people seem to get the same thing. The judge I had just wasn't interested in what I had to say about the legality of the CCA.

 

Sorry, unfortunatly I'm nor going to be around til tuesday as I am about to go to a wedding. I hope rory can help you further, and I'll look in then. You do need to make your argument about both the enforceability of the credit agreement and unfair charges. It works.

[rory32]

Bluetack, this is a defence tomterm8 has successfully used in the past. Please feel free to adapt it to your situation.

 

1. The defendant does not admit or deny the debt, and put the claimant to strict proof thereof.

 

2. On XXX the defendant sent a request under the consumer credit act for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on the XXXXX 2007 by recorded delivery and the claimant has so far failed to send the defendant the required information.

 

I would respectfully submit the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information.

 

3. The claimant states the alleged debts were purchased from XXX and XXX. I have not received a notice of assignment for the alleged debts from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.

 

4. I have not received a copy of any default notice from the claimant, and ask that the claimant provides the court with a true copy of such a notice, and with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted .

 

5. During the period in which the Account [was] operating the Claimant and/or original creditor debited numerous charges to the Account in respect of purported breaches of contract on the part of the defendant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

6. The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and under common law.

 

7. Therefore, in addition to asking the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925, the defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last 6 years in order for them to prove that the debt amounts to the amount claimed.

 

8. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.

[tomterm8]

Rory, just to correct you, the case I used the above defence never went to judgement (it was settled out of court, to my satisfaction)

 

Can I suggest the original poster looks at his information and posts (minus any identifying info):

 

 

1. The claim form

2. Any defence posted.

3. A description of what's happened so far

4. A description of the dates & reason for any charges.

5. Any relevant previous documents i.e. copies of the Credit Agreement, Notice of Assignment, Notice of Default, Notice of Termination etc.

 

This will help use get further.

[Arwen]

You may also wish to look at the case of Wilson and others v. Secretary of State for Trade and Industry.

 

 

And Diamond v Lowell

[bluetack]

Well, today I received statements from CL Finance via courts. Only thing is they run from 2002-2004 then nothing until one statement in 2006 when the debt was sold, so over two years statements are missing. I know I didn't pay anything in these two years but surely there should still be statements! Have CL failed to comply by not providing all statements?

[Tau]

Hi all, just subscribing.

 

Good luck bluetack.

[Fred Bassett]

Subscribing - good luck.

[bluetack]

Thanks Tau!

[bluetack]

Thanks Fred!

[PriorityOne]

Reading through this thread, it seems that the Judge is considering The Consumer Credit Act, 2006 and not 1974.... and is using his discretion to re-enforce the debt based upon the wrong Act.

[bluetack]

Yes, I think you are right.

 

The letter sent from the court with the statements says:

 

The hearing of the claimants application for Summary Judgment will take place at 10.30 on 27th June 2007.

 

Part of the evidence states:

The defendant entered into a regulated credit agreement with RBS, a copy of the said agreement attached. The copy is of an application for credit.

There is a balance of xxxxx outstanding under the agreement and a copy of statements for the account from Feb 2002-July 2006 attached. Statements from 2004-2006 are missing.

I am now going to take Rory's advice and fight this to the gruesome end!

 

My defence will be based on non compliance of the requested statements and failing to supply CCA.

 

Can anyone advise me about a couple of things please?

 

1) Should I attach a copy of the Consumer Credit Act 1974?

2) How should my defence be set out?

 

Thanks in advance!!!

[rory32]

1) Should I attach a copy of the Consumer Credit Act 1974?

 

No. It is about a hundred pages in length. What I think is the best thing to do is to refer to the relevant sections of the act and perhaps say what these sections state if necessary.

[lemma1968]

You really do need to take a copy of Wilson to court with you. the judges do not know the legal authorities (precedents as we call them) and will expect to see a copy if you are relying on it as part of your defence.

 

If the judge ignores it then on a point of law the judgment will be appealable and if you are in financial difficulties and on a low income you may be eligible for legal aid for the appeal.

 

Drafting something like a skeleton argument will completely throw the claimants.

 

On the day you go to court, have with a you a draft something like this"

 

Court Name Case Number: xxxxxxxxx

 

Between:

 

 

 

Immoral Bank claimant

 

-and-

 

bluetack defendant

 

 

 

skeleton argument

 

 

The Parties

 

The Claimant is .........DCA/bank

The defendant is Bluetack.

 

The Facts:

 

On xxxxxxdate the xxxbank/dca commenced proceedings against the defendant for £xxxxx plus interest, a debt allegedly incurred on xxxxdate.

 

The debt was assigned to (DCA name) by a deed of assignment dated (or not as the case may be).

 

(Then effectively recite your defence )

nos 1-8

 

Relevant Statute and Case Law

The relevant Statute is the Consumer Credit Act 1974 s127 (3) which states....(take a copy of the relevant paras with you)(oh and you can buy a proper copy of the Act from HM Stationers or just download it) and s.(whatever.........) which states that........

 

The failure to provide a properly executed CCA was considered in the leading case of Wilson v.............. (full citiation needed), copy attached hereto, in which it was held that (and there will be a headnote on the case that will give you a shortform bulletpoint judgment) i.e. that an improperly executed agreement was unenforceable regardless of prior acknowledgment. I respectfully remind the Court that this is a decision of the House of Lords and is therefore binding on this court.

 

The defendant seeks an order that the claim is dismissed (and whatever other relief you are seeking).

 

 

signed/dated

 

 

This is only a rough draft but if you turn up with your ammo it will completly throw them and the DJ will have to take notice.

 

One thing that must be remembered is that DJ's deal with many, many cases each week in differing areas of law that they may actually know very little about so you need to quote chapter and verse. The situation with DJ Besford at Hull County Court threatening to strike out loads of bank charge claimbacks is testament to that. I have appeared in front of him on family law cases and financial proceedings in divorce....they are NOT specialist judges.

[lemma1968]

Thanks for the clicks.

 

Not my area of law but I know a bit about court craft.

[lemma1968]

Again thanks for the click. Don't know who it came from but i'm most grateful. Just trying to help the best I can.

[bluetack]

Help!

 

Just been looking through my credit report from Experian and the debt that CL Finance bought from RBS isn't there.

What I mean is there is no debt to RBS on my credit file.

There is a default registered to CL Finance on 20/02/04 (this is when the statements stopped from RBS) BUT THEY DIDN'T BUY THE DEBT UNTIL AUG 2006!! What's going on here?

[rory32]

I can only assume that because CL bought the debt that the default became registered in their name as well as the debt (it would have been previously registered in RBS's name).

[bluetack]

I see what you're saying Rory, but how could a default be registered to CL on 20/02/04 when they didn't own the debt until 2006?

[rory32]

Because the default would have been originally registered by RBS but when CL bought the debt they would also buy the rights of the creditor. This would mean that the debt (and any defaults) would become registered with CL Finance.

 

This will be why there is no debt registered to RBS on your credit file - because RBS have sold the rights to the debt.

 

Is that any clearer or is it still clear as mud?

[bluetack]

Clearer now thanks. Sorry, I'm trying to put together a letter to the court to get this case struck out before the hearing and I got side tracked by my colourful credit report! This is really messing with my brain cells and I don't want to appear in court again! Can they strike this out before the court date based on my defence?

[rory32]

Can they strike this out before the court date based on my defence?

 

I believe you would need to apply to the court to strike out the claim under rule 3.4

 

3.4 (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

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

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(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.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(4) Where ---

(a) the court has struck out a claimant's statement of case;

(b) the claimant has been ordered to pay costs to the defendant; and

© before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

 

the court may, on the application of the defendant, stay (GL) that other claim until the costs of the first claim have been paid.

(5) Paragraph (2) does not limit any other power of the court to strike out (GL) a statement of case.

(6) If the court strikes out a claimant's statement of case and it considers that the claim is totally without merit ---

(a) the court's order must record that fact; and

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

[rory32]

Also for your information:

 

1.7 A party may believe he can show without a trial that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

[bluetack]

Yes, this is exactly what they have done. They have applied for a summary judgement in their favour based on their assumption that ' the Defendant has no real prospect of successfully defending the claim' and 'The Claimant is not aware of any other reason why the disposal of the claim should await trial'.

[rory32]

Sorry meant to say it is rule 3.4 of The Civil Procedure Rules. You may find this link of use http://www.justice.gov.uk/civil/procrules_fin/pdf/practice_directions/pd_part03.pdf

[bluetack]

My husband has just read my thread and thinks that the judge can see I applied for credit with RBS, I used the card and spent the money, CL Finance bought the debt legally, and really I should just make an offer of payment before a judgement is made and another charging order goes on the property. He thinks the CCA argument is futile as its merely a dodge people use to avoid paying their debts and judges will be wising up to this.

 

Anyone any thoughts on this??