Mitzbag vs MBNA

[pudsters14]

Hi everyone, sorry i've not updated for a while but to be honest nothing much has changed for me apart from the fact ive either been fobbed off/ignored/insulted by the companies etc... no change there then! lol

 

Anyways I'm just about to send off letters to mine and hubbies to get final outcomes from them all.

 

This however is for my friend who has an aol address so is having probs setting up his cag account, he will be sorting it tho.

 

He has CCA'd MBNA. This is what he got back. Complete rubbish as usual but can you have a lookysee, and see what you think.

 

I am thinking most definately prescribed terms missing in the signature doc, but as this is for my friend and I wanted the best advice possible... need your expertise.

 

Please post your comms and let me know

 

 

Thanks

 

 

Pudsters14 x x

 

+

 

The Shuntalicious Mitzbag x x x x x

[pudsters14]

[pudsters14]

[pudsters14]

1st image is the front of the doc and the 2nd image is the back of the doc. Pllleeease let me know what you think?!?! I have enlarged these images but it's just a small tear-off section from the bottom of an application form.

 

Thanks

 

Pudsters14 + The shuntalicious Mitzbag x x x x x

[pudsters14]

bump!

[rory32]

This seems to be standard practice from MBNA now. It is as you state a tear off section from the application form. An application form is exactly that - an application for credit. A consumer credit agreement is an agreement where credit has been granted.

[pudsters14]

Thanx Rory, just want some advice for him. I'm already disputing a lot of mine and hubbie's agreements but i know it's not something to take lightly so I just wanted some advice that I can let him read. Thanx again!

 

Pudsters14

x x x x x

[gill5blue]

Hi,

Where you have signed it, it says that 'this is a credit agreement replaced by the Consumer Credit Act 1974' have you checked out what that actually means?

Good Luck with your claim

[rory32]

Where you have signed it, it says that 'this is a credit agreement replaced by the Consumer Credit Act 1974' have you checked out what that actually means?

 

It doesn't matter where or if it was signed. It is an application for credit, nothing more.

[ncf355]

rory's correct - further confirmed by the table of interest rates supplied for various credit limits, etc

 

Pre contractual

 

Write and ask for the executed agreement, putting 'execuited agreement' in bold and confirming they have sent an application form and NOT an executed agreement

[pudsters14]

Excellent... thanx ncf355. Have printed the letter for my friend, will keep you all updated with what goes on!

 

Thanx again

 

Pudsters14

x x x x x x

[pudsters14]

My friend has now been taken to court by MBNA on a different alleged account... I'm going to post his defence and would appreciate all feedback...

 

Thanx

 

Pudst

x x x x x

[pudsters14]

Defence

 

1. I, Mitzbag, am the defendant in this action and make the following statement as my defence to the claim made by MBNA Ltd.

 

2. 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.

 

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

 

4. 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 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.

 

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

The build up to this action

 

6. In the build up to this action, I had raised a formal dispute with MBNA Ltd and later on Restons Solicitors. On 16th November 2007 and 14th November 2008 I sent a request under the Consumer Credit Act 1974 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. MBNA received the first request on 17th November 2007 by recorded delivery and I hand-delivered the second request to Restons Solicitors. The claimant has so far failed to send me the required information and Restons Solicitors have refused to deal with my request. A copy of the request dated 16/11/07 is attached to this defence marked MB01 along with proof of postage, marked MB02. A copy of the request made to Restons Solicitors is also attached to this defence marked MB03 and Restons' response is attached marked MB04.

 

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

 

8. I would also respectfully request that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the Consumer Credit Act 1974, otherwise the court’s powers of enforcement are surely limited in these circumstances.

 

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

 

The relevant Act of Parliament in this Case

 

10. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006. 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

11. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Results within legislation - Statute Law Database Legislation&title=consume r+credit+act&Year=2006&se archEnacted=0&extentMatch Only=0&confersPower=0&bla nketAmendment=0&sortAlpha =0&TYPE=QS&PageNumber=1&N avFrom=0&parentActiveText DocId=2459360&ActiveTextD ocId=2459380&filesize=556 )

 

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.

 

 

12. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by.

 

The Request for Disclosure

 

13. Further to the case, on 17/11/2008 and 26/11/2008, I requested the disclosure of information pursuant to the Civil Procedure Rules 18. These requests were received and signed for by Restons solicitors on 18/11/2008 and 27/11/2008, which is vital to this case from the claimant. The information requested amounted to, a copy of the Credit Agreement referred to in the Particulars of Claim, terms and conditions that applied to the account both at the time of default and at the time the account was opened, transcripts of all telephone conversations recorded and any notes made in relation to telephone conversations by the claimant, or by any other previous creditor, any event in the account history which has required manual intervention and true copies of any notice of assignment or enforcement notice that the claimant or the original creditor sent to me (with any proof of postages held). Documents and details relating to any insurance added, details of any collection charges added to the account (with a financial breakdown of how the charge was calculated and what the charge covers), details of any other fees or charges, a genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998, a list of third party agencies to whom the claimant has disclosed by personal data, copy statements for the entire duration of the credit agreement and any other documents the Claimant seeks to rely on in court including any default or termination notices.

 

14. To Date the claimant has refused my request under the Civil Procedure Rules 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. Restons Solicitors have acted in a way to merely obstruct and complicate proceedings and I have reported this to the court on both occasions. (Copies of the requests are attached to this Defence marked MB05 and MB06. Restons' Responses are also attached marked MB07 and MB08).

 

 

The importance of a copy of the credit agreement and its production before the court

 

15. Firstly, I make reference to an excerpt of case law from the case of Wilson v First County Trust Ltd [2001] EWCA Civ 633,In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

 

16. The message clearly from the case of Wilson v First County Trust Ltd [2001] EWCA Civ 633, is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence.

 

17. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and whether it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.

 

18. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

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

 

20. 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.

 

21. Firstly, the agreement must contain certain Prescribed 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).

 

22. 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

 

23. It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document.

 

24. 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, whichare 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.".

 

25. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

26. Notwithstanding point 13, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

27. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

28. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

29. Further more 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.

 

30. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) 28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

31. 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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor.

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

32. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

33. 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.

 

34. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic. The defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

35. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss original or destruction of the credit agreement was central to the case and the defendant is under the belief that the outcome of the case was that where the original agreement could not be produced the claim could not succeed and that the appeal was successful.

 

36. 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 as unenforceable.

 

The Need for a Default notice

 

37. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

38. It is neither admitted nor 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.

 

39. Not withstanding point 27, 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).

 

40. 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.

 

Conclusion

 

41. 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.

 

42. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. 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.

 

43. As laid out in point 24 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

44. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

45. 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.

 

46. 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, 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 six years to prove that the debt amounts to the amount claimed.

 

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

 

 

Statement of Truth

 

 

I, Mitzbag, believe the above statement to be true and factual.

 

 

Signed - ..............................................

 

 

 

 

Please let me know what you think!

 

Pudst

x x x x

[rory32]

It would be useful if you also post the Particulars of Claim.

[steven4064]

Hi pudst

 

THis looks like a standard pt2537 defence. I have a couple of comments (in red)

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 required by paragraph 7.3 of CPR Practice Direction 16.

 

6. In the build up to this action, I had raised a formal dispute with MBNA Ltd and later on Restons Solicitors. On 16th November 2007 and 14th November 2008 I sent a request under section 78(1) of the Consumer Credit Act 1974 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. MBNA received the first request on 17th November 2007 by recorded delivery and I hand-delivered the second request to Restons Solicitors. The claimant has so far failed to send me the required information and Restons Solicitors have refused to deal with my request. A copy of the request dated 16/11/07 is attached to this defence marked MB01 along with proof of postage, marked MB02. A copy of the request made to Restons Solicitors is also attached to this defence marked MB03 and Restons' response is attached marked MB04.

 

7. I would respectfully submit that the debt is unenforceable under section 78(6) of the Consumer Credit Act 1974 until such time as the claimant provides the necessary information.

 

8. I would also respectfully request that the court order the claimant to produce the original signed agreement before the court as required by paragraph 7.3 of CPR Practice Direction 16 to show the form and content of it and that it complies with the Consumer Credit Act 1974, otherwise the court’s powers of enforcement are surely limited in these circumstances.

 

9. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing all the prescribed terms, the minimum required by section 127(3) of the Act, I request that the court uses its powers under section 142 of the Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

 

27. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

28. Without prejudice to the above, since the claim is based on a purported written agreement, the production of the original of the agreement before the court is mandatory under Practice Direction 16 of the Civil Procedure Rules:

 

"7.3 Where a claim is based upon a written agreement:

(1) 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"

Amend paragraph numbers 28 -> 29, etc

[pudsters14]

Hiya, thanx for those comms i will get them changed. It's actually bits of different defences but they may have come from PT originally, I've added bits myself too.

 

I will post the particulars of claim nw!

 

Thanx again for all your help!

 

Pudst

x x x x

[pudsters14]

Righto... P.O.C!

 

 

 

 

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 20/XX/2006 in the sum of 5XX1.25 inclusive of interest to the date of this summons at 8% per annum from 04/11/08 to 13/11/08.

 

PARTICULARS a/c no: XXXXXXXXXXXXXXXXXXXXX

 

DATE ITEM VALUE

04/11/2008 Default Balance 5XX0.85

Post Refrl Cr NIL

 

13/11/2008 Interest 10.40

TOTAL:- 5XX1.25

 

Together with:-

Interest pursuant to S69 County Courts Act 19 at the rate of 115.53 pence per dayto the date of judgement or sooner payment.

 

 

Pls let me know your thoughts, I've crossed out some of the info I think could be used to identify the case but if you need anything clarifying, just send me a message...Thanx

 

And...... the default notice sent only asks for arrears on the account and not the full balance.... is this important as the claim is asking for the full balance?

 

Pudst

x x x x

[steven4064]

the default notice sent only asks for arrears on the account and not the full balance.... is this important as the claim is asking for the full balance?

THat's the usual way - the default is missed paymen and then they close the account and ask for the lot

[pudsters14]

Just to clarify... so with the additions from steven (thanx!!!!) is the defence above good to go?!? Thanx again for all your help!!Pudstx x x x

[steven4064]

Provided you have checked it through that it is factually correct, I would say so

[pudsters14]

Brill thanx............Pudst x x x

[pudsters14]

My friend's defence has been sent today spesh post!Hooray......Pudst x x x

[pudsters14]

text removed

Edited January 20, 2009 by pudsters14
no line spaces - didnt make any sense

[pudsters14]

Mitzbag has had the n150 allocation questionnaire and will be posting on what how we intend to fill it in, please can you give us some advice... thanx.... Pudstx x x x

[mitzbag]

ALLOCATION QUESTIONNAIRE

 

Have you sent a copy of this completed form to the other party Yes

 

A. SETTLEMENT

 

For All

 

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

No

 

Reasons: Without production of the requested documents, I am at a disadvantage and am unable to negotiate a settlement without the full facts.

 

B. LOCATON OF TRIAL

 

Is there any reason why your claim needs to be heard at a particular court? NO

 

C. PRE-ACTION PROTOCOLS

 

You are expected to comply with the relevant pre-action protocol.

 

Have you done so? No

 

If No, explain why?

 

This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had no response from the claimant in this regard.

 

 

 

D. CASE MANAGEMENT INFORMATION

 

What amount of the claim is in dispute? £XXX

 

Applications

Have you made any application(s) in this claim? NO

 

Witnesses

 

Xx xxxxx All the facts in the case

XX xxxxx All the facts in the case

 

 

ExpertsNo

 

TrackFast Track

 

If you have indicated a track which would not be the normal track for the claim, please give a brief reason for your choice:

 

Its is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

 

 

E TRIAL OR FINAL HEARING

 

How long do you estimate the trial or final hearing will take? 4 Hours

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or hearing? NO

 

 

F PROPOSED DIRECTIONS

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party? NO

 

G COSTS

 

Leave blank

 

H Fee

 

I OTHER INFORMATION

 

Have you attached documents to this questionnaire? YES

 

Have you sent these documents to the other partyYES

 

If Yes, when did they receive them?

 

Do you intend to make any applications in the immediate future?YES

 

If Yes, what for?

 

An order seeking the Claimants compliance with information previously requested.

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

Its is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further.