does anyone have a copy of their CCA from next

[pt2537]

I agree with Sequenci, goods are totally irrelevent, the goods were purchased under credit terms and thus there needs to be a regulated agreement in place in compliance with the CCA 1974

 

also the judge should consider the Wilson case as it is relevent here, i cannot see a county court judge ignoring a House of Lords decision

 

 

regards

paul

[pt2537]

i agree with tomterm8

 

however, ive been asking myself, if the judge were going along the lines as suggested that would mean he is not only ignoring the Consumer Credit Act 1974 and regs but the House of Lords in Wilson -v- FCT.

 

 

thats plain wrong and he cant do that

 

the problem is that not all judges are clued up on consumer law, so i think we need to point him in the right direction;)

 

Regards

paul

[pt2537]

it seems thatthe judge is looking at this from the angle of the 2006 consumer credit act not the 1974 one. if htat is hte case he is wrong to do so as section 127 is not repealled retrospectivly so therefore old agreement come under the 1974 act

 

which is confirmed here The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) - Statute Law Database

 

im sure tom will come up with something, but i think it is certainly relevent that the judge is drawn to the Authority of Wilson and any other Statutes that you are relying on

 

he cannot ignore it if it is drawn to his attention, but the onus is on you to raise the info to his attention not for the court to research the law on your behalf

 

Regards

paul

[pt2537]

Excellent Tom

[pt2537]

ben, wouldnt the defence i did this morning be usefull here where they are trying to circumvent the CCA?

 

who has actually issued this claim against you? is it next or a DCA? sorry i havent read the thread

[pt2537]

Malaga1

 

Dont panic, when i get back this evening i will put together a defence to this action and post what i suggest on here

 

the usual rules apply, i am not a lawyer and my advices is purely advisory, you use this on you own initiative

 

 

 

 

regards

paul

[pt2537]

Malaga

 

Can we please also confirm that Next have asked Howard cohens to take this action? what i mean is, have any Debt collection agencies been involved? who is the claimant on the claim form?

 

what exactley are the particulars of claim, verbatim ideally wwithout personal details

[pt2537]

well malaga1 , i will put up a defence for you this evening, i cant say what time it will be but, i can say it will be tonight before midnight cause i have to get a few things sorted

 

so the claimant is next, right thats ok, we can deal with this, oh out of curiosity have you ever recieved a Default Notice? if you have it would be in our favour as we can show they are stating the account comes under the remit of the CCA 74

 

 

 

i will be back in a while

 

 

 

Merry Christmas

[pt2537]

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

Next- Claimant

 

and

 

 

Malaga1 - Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

 

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 default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

.

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

 

Request for Documents made under S78 Consumer Credit Act 1974

 

6. Prior top the start of this action, I requested that the claimant supply a true copy of the executed credit agreement pursuant to section 78 (1) Consumer Credit Act 1974.this request was made on xx/xx/2007 and under the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) the period in which this must be supplied is 12 working days the claimant did not comply with this request and discharge their obligations under s78 (1) CCA 1974

 

7. Instead the claimant sent a blank credit agreement with no personal details on it which in no way discharge's the claimants responsibilities under s78 CCA 1974, there was no way in ascertaining that this agreement was indeed the one between the parties in this claim

 

8. Since the claimant has failed to supply a true copy of the executed agreement as defined within Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), in particular regulations 2 and 3 of the Cancellation Notices and Copies of Documents regulations, it is averred that the claimant is not entitled to take this enforcement action under s78 (6) of the Consumer Credit Act 1974 which states....

 

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

 

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

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

 

 

9. Therefore it is suggested that the Consumer Credit Act 1974 would preclude the claimant from taking this legal action until they comply with the request made on xx/xx/2007 and disclose a compliant copy of the credit agreement under s78, merely sending a blank credit agreement does not discharge their obligations

 

 

 

Credit account

 

 

 

10. The account no xxxxxxxxxxxx referred to in the particulars of claim relates originally to a Next catalogue account and furthermore is classed as running-account credit as defined within section 10 (1) (a) Consumer Credit act 1974 which states inter alia

 

(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and

 

11. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

 

12. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

 

13. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

 

14. The Claimant is therefore put to strict proof that such agreement exists and it is denied that this is outside of the scope of the Consumer Credit Act 1974

The Request for Disclosure under the CPR

 

15. 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 between 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.

 

16. This request was sent by royal mail special delivery document number XXXXXXXXXX and was received by the claimant on xx/xx/2007

 

 

17. 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

 

18. The claimants behaviour has been wholly unreasonable and has failed to enter into any meaningful negotiations despite them being aware of the issues surrounding the account and the fact that they have failed to disclose the requested information both under the Consumer Credit Act and the Civil Procedure Rules

 

Consequences of Non Disclosure of the agreement

 

19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the 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)

 

20. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 19 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

 

21. With regards to the Authority cited in point 15, 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."

 

 

The default notice

 

22. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

23. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

24. Notwithstanding point 23, 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)

 

25. 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

 

26. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the debt unenforceable and strike out the claimants case accordingly

 

.

28. 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.

 

29. Should the court not consider it appropriate to strike out the claimant case, the defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

 

30. 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 before April 2007, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that the account would be regulated by the 2006 Act at any time herein

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

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

 

Date

 

 

 

 

 

 

 

 

 

Hi Malaga1,

 

this is what ive come up with, have a read through and let me know if there are any questions.i may have to make a few alterations but im not sure as it stands

 

when does it need to be with the court?

 

regards

paul

[pt2537]

hi Malaga,

 

i have had to make an amendment to the defences as i mistakenly numbered one point

 

the change is point 20 where it refers to point 14, this should have been point 19

 

regards

paul

[pt2537]

PART 27 - THE SMALL CLAIMS TRACK right then heres the part 27 of the CPR,

 

i will have to refresh my self on your case, im sure you will appreciate that i deal with so many cases that its easy to forget whose case is what etc

 

so i will have a good look over and see what we do from here

[pt2537]

Hi all,

 

just a bit of info for you,

 

ive seen in a few cases now the other side try to convince the judge that the credit comes under the CCA 2006, IT DOES NOT, however if this gets argued in your cases, produce this Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

section 11 points out that the new CCA has no effect on agreements made before 6th April 2007

 

regards

paul

[pt2537]

Next Terms and Conditions | Next Directory Online

 

yeah well they have shot themselves

 

the above link does lead you to the conclusion that any goods provided where you do not pay for them in advance are provided on credit under s credit account. therefore the goods supplied were done so on credit and they need a credit agreement, other wise the goods are a gift see Sir Andrew Morritts judgment in the Court of Appeal in wilson & FCT at para 26

 

as tom says they are stuck

[pt2537]

Have you recieved any orders from the court since you filed your defence at all?

[pt2537]

Yes, when I received the court date.As I said in previous post I should have done the Statement of Truth and any papers you wish the court to consider should be sent 14 days before hearing and I have not done them!

 

Right so what did the order say?

 

its just that ive been back to the defence and i cant see any posts that mention you having to file a statement?

 

can you confirm either way what you have recieved from the court detailing what if anything you need to do

[pt2537]

I have today had Notification of Trial Date! In the Brighton County Court on 14th April. This Claim is allocated to the Small Claims Track and parties are referred to Part 27 of the Civil Procedures Rules and the Practice Direction of that Part for guidance on how the hearing will be conducted. It is estimated the hearing will take one and a half hours! etc.etc. I really cant see how the judge has ignored everything regarding NO CCA!

 

Why didnt you say that you needed to file a witness statement ?

 

well it makes it slightly harder but still it is the case that No CCA No Enforceable debt

[pt2537]

well you could file a witness statement BUT its highly likely that they will now ask for it to struck out and not admitted as it will be out of time

 

you must never ever rely on the other side doing or not doing something as you can lose your case if you do!!!!

 

no matter what they other side do you must always follow the directions of the court

 

im not sure where this is going to leave you as i am certainly too busy at this precise moment to put any witness statement together and am unlikely to have any available time for the next few days as i am trying to get a business off the ground

[pt2537]

I would definatly appeal, since the verdict was simply wrong.

Not only is the verdict plainly wrong but the judge made an error on a point of law,

 

you need to appeal as a matter of urgency if that is what you indeed intend to do

[pt2537]

The judge said I had got it wrong. He said I had the goods.When I argued about the CCA,or lack of it, he said they do not need to supply me with won if I have had the goods.Can someone please tell me if I do now have a CCJ against me?

 

Yes you do, well if the judgment isnt paid within 28 days or appealed then you will have a CCJ