car2403 -v- HFC Bank (Default removal)

[caro]

I'm sorry it is too confusing for me Car. Do you think it might be worth a thread for each claim? You could either let me have the post numbers in this thread for each claim, and I could split them. If that's unworkable how about 2 completely new threads with a summary of each case so far. You can always link back to this one if people have questions on the new threads that have been answered in this one, or copy and paste the relevant parts.

 

You don't have to do this, but I think I'm unlikely to be the only one who's confused.

[car2403]

It is getting that way, caro, but the claims are very similar - just in reverse - as I've taken action on one agreement and they have done the same on the other. I don't think it's best to split the thread now, as I'm almost at the hearing stage of both - I'll just have to make sure my questions are clearer and to which claim they relate to.

 

So - HFC v me - should I submit a cut-down version of my skeleton argument outlining my case against HFC's for the Application hearing (2 x Summary Judgments) on 26/02?

[Nick W]

Ok this is what you should have from the Court for any claim.

 

It shoud, say Notice of Hearing of Application (or something like that).

 

It will include something like

 

1) The hearing will be heard on xxxxxx

 

2) The Claimant must file and serve evidence on which he seeks to rely by xxxxx

 

3) The Defendant must file and serve evidence in response, which he seeks to rely on by xxxx (generally 21 days later).

 

 

This will include skeleton, as you are seeking to rely on it and therefore must be disclosed if you intend to use.

 

However, a skeleton is just that, very basic. 20 pages is way too long for a summarily judgment hearing.

 

What is your time estimate? They are normally 20 mins or so, but it will show on the application.

 

If that is the case skeleton should only be 3 pages MAX and thats with 10 point and 1 and half line spacing.

 

You will need to file a witness statement in any event. Thats what you are seeking to rely on, but it must also be succient and to the point. You are showing why your claim should NOT fail.

 

Skeleton is an aid memoire showing the judge points of law addressing your opponents arguments and supporting yours.

 

JUST FOR CLARITY - It will NOT be the judge who has made the order for summarily judgment hearing - only the opposing party can make an application for this.

 

Directions hearing - that is only for guidance on how the case is to progress, it has got NOTHING to do with if the Judge thinks you have a case or not. Its more for timetable. Has your claim be allocated to a track yet?

 

Does that help?

 

Nick

[car2403]

The Notice of Hearing form says;

 

To the Defendant;

TAKE NOTICE that the hearing of the Applications will take place on 26 February 2008 at 11.00am at XXX County Court,

When you should attend

45 MINUTES has been allowed for the Hearing

Please Note: This case may be released to another Judge, possibily at another Court.

 

It doesn't include anything about having to file and serve evidence, as the Claimant (HFC) has given the statement and evidence here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-8.html#post1312212

 

It's this bit that's interesting;

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMARY JUDGMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING, IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANT’S SOLICITORS, MESSRS RESTONS SOLICITORS LIMITED OF TRINITY CHAMBERS, 800 MANDARIN COURT, CENTRE PARK, WARRINGTON WAI 1GG AT LEAST SEVEN DAYS

BEFORE THE DATE SET FOR THE SUMMARY JUDGMENT HEARING

 

This isn't part of the Notice of Hearing from the Court, but it is included in the Application Notice attached.

 

Then has my Application Notice, outlined here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1268593

 

So, 45 minutes for 2 Applications - I have 20 mins to put mine forward to be heard and they have the same. Working on that, I need to massively reduce my Skeleton argument (here: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1305973) down to 3 pages - I just hope I don't miss anything that's important - and take the larger Skeleton on the day.

 

The one with the Directions Hearing (claim 2 - car2403 v HFC) hasn't been allocated to a track yet, but it should be small claims as the claim is for £1k and the agreement is only £700 - I think the hearing is to put my Draft Directions in place? (here; http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1295721)

 

Sorry about all the links, but this has all been posted on the thread already. (Hence caro's - and others - confusion!)

[Nick W]

OK - have they filed anything (such as statement) other than the application Notice?

 

They will need to in order to rely on it.

 

YOU will need to file and serve on Applicant and Court 7 clear days before hearing, your statement in response - to be safe.

 

Does that help

 

N

[car2403]

They haven't sent me anything, only the Application Notice and evidence to the Court then sent me a copy.

 

So I don't rely to their statement until I've seen it - makes sense.

 

How do I make my statement (application to strike out the claim as not particularised sufficiently) on them, so they can reply?

 

Actually, I was thinking about this just now - now they have filed this Application Notice that refers to the agreement and my breach of it, they probably have particularised sufficiently now, should they rely on this statement as part of their claim. To save all this hassle, do you think it's worth writing to them offering to withdraw my application if they agree to withdraw theirs and let the claim go to allocation? Would the Court even allow that to happen now? Makes sense, (given what Gary has said above) in that we both think we have a claim or defence and a full hearing should happen - it would save them money and the Court time if we both withdrew and asked the Court to allocate the claim and set a hearing date.

[Nick W]

They cant rely on anything that has not been disclosed.

 

That is the same position as you though. In order to rely you must file and serve on other side and Court.

 

If this is their application for summary judgment then they must file something.

 

You can ONLY file something in return once you have their statement, otherwise how can you file in return (unless its you that have made the application yourself?)

 

If your application is that they particularise their defence correctly, thats probably what the directions hearing is for.

 

You can ask the judge the direct that the current defence is struck out and that they fully please and file a defence within 14 days (for example), otherwise you would file for judgment in default.

 

I really wouldnt bother saying you will withdraw app if they fully plead defence.

 

At the directions hearing, you can ask that the claim be allocated to small claims and see what the other side response is.

 

You have the arguments, easy law and less £5k, so there is no reason why the judge can not allocate and give that direction.

 

Is all that ok?

 

Nick

[GaryH]

A couple of points;

 

Theres no right or wrong format for a skeleton argument - they can be as long or as short as they need to be, depending on the complexity of the issues. It is better if they are as succinct as possible though with just the fundemental points of each issue you want to raise - as Caro said try to leave some elaberation for the hearing if you can. Also, if it's twenty pages you can probably gaurantee that the judge won't read it all anyway so probably best to strip it down a bit. There isn't actually any requirement to exchange skeleton arguments in SCT cases, although as a LIP it's definately best that you have all your main arguments down on paper.

 

If it were me I think I'd take the main issues of each point and serve it labelled as a witness statement (in these circumstances as your the witness to your own case there's very little practical difference between a witness statement and skeleton argument) along with any evidence you wish to rely on. Incidentally you won't get a directions order for the SJ hearing - the only requirements to file and serve documents are contained in p24.

 

What is the main argument that your putting forward? I.e upon what basis in law are you seeking to get the default removed?

[car2403]

Ok - confusion, again...

 

Lets "can" the 2nd claim (me -v- HFC) for now - that's the one at the Directions Hearing stage.

 

The Application Hearing is the other claim (HFC -v- me) in which I filed an Application Notice saying they haven't particularised fully, so strike out under CPR Part 16 and award summary Judgment to me based on my Defence and let the Claim progress on counterclaim alone - if no strike out, as requested, stay the claim for 28 days to allow them to particularise, then strike out if they don't.

 

They responded by seeking Summary Judgment against me - how, I don't know, as they haven't particularised properly... I think I scared them with my Defence and Application to strike out.

 

Reading between the lines in your post;

 

1) I don't have to file anything in response to their Application Notice for Summary Judgment until they have served more information/evidence on me first? Is it not that I should respond to the Application Notice - I don't want to be refused the opportunity to respond in the hearing as I haven't served a written reply first.

 

2) I don't have to serve anything on them to back up my Application to strike out based on incomplete particulars, as the particulars are incomplete and I've challenged them by submitting the Application Notice. Again, I don't want to miss the chance to put my case forward because I haven't submitted further written submissions

[GaryH]

If this is their application for summary judgment then they must file something.

 

You can ONLY file something in return once you have their statement, otherwise how can you file in return (unless its you that have made the application yourself?)

Not exactly - they have filed something, they've filed their application notice setting out their grounds for SJ. Then, if they wish to rely on it, its down to the respondant to serve evidence 7 days before the hearing. Then the applicant's evidence 3 days before.

[Nick W]

Oh I see now - its an application and cross application.

 

What have THEY and YOU put in part c of the application notice?

 

N

[GaryH]

Is it not that I should respond to the Application Notice?

Correct

[GaryH]

Unenforceable agreement as missing prescribed terms, (no statement of protection/remedies available under the CCA) unlawful Default due to application of charges which were contained in the Default Notice.

Yep - get rid of all the backgroud stuff. If you want to get SJ against them then keep it to the precise reason, in law, why you think their case is hopeless. I.e, set out what the law demands, then demonstatrate exactly why and how they have not, and cannot, comply with it.

 

You can mention it but don't attack them too much over insufficiant particularisation or make it your main argument - that alone isn't grouds for SJ. It's about the lack of prospects of the case as a whole, as opposed to the details or inadequacy's of the pleadings. (which is the main disctinction between the grounds for striking out and the grounds for SJ - strike out relates mainly to a statement of case)

 

Best of luck. However you decide to go about it, just be confident in your arguments and put them accross as well as you can.

[car2403]

Well you can rely on your POC if you need to, for reasonable prospects of succeess issue.

 

Yes, as far as your app for non particularisation, I assume you put this in your application to the Court.

 

So all in all, you probably dont need to do anything.

 

N

 

Oh I see, I've already submitted my Defence to their claim - so, they've applied for SJ and have to show that the Defence doesn't meet the whole/part of the claim, or the Defence has no chance of success. They won't be able to do that.

 

I've asked for strike out for incomplete POC - they have to respond in reply, which will be looked at during the hearing.

 

It's all coming together now - and making sense to me, bizarrely! Sometimes you have to put things down like this and take a step back before you see the wood for the trees...

 

I think I have this sorted now - do nothing and turn up to Court, unless they offer some argument against my App to strike out.

 

One question - can they use the information in their App for SJ as part of their claim? I'm sure I've read they have to ask for permission to amend their POC, in which case I get to submit an amended Defence - but only if the Court lets them? (This is why I wanted to withdraw the Apps and go straight to trial, as that will take longer)

[car2403]

Yep - get rid of all the backgroud stuff. If you want to get SJ against them then keep it to the precise reason, in law, why you think their case is hopeless. I.e, set out what the law demands, then demonstatrate exactly why and how they have not, and cannot, comply with it.

 

You can mention it but don't attack them too much over insufficiant particularisation or make it your main argument - that alone isn't grouds for SJ. It's about the lack of prospects of the case as a whole, as opposed to the details or inadequacy's of the pleadings. (which is the main disctinction between the grounds for striking out and the grounds for SJ - strike out relates mainly to a statement of case)

 

Best of luck. However you decide to go about it, just be confident in your arguments and put them accross as well as you can.

 

See - it's even clear to you that I understand it now, so I must be on the right track!

 

If I can explain it here, I'll have no bother doing it in Court... "Shy kids" and all that...

[car2403]

Claim 1 - HFC v car2403;

 

I've been working on that statement responding to their application for Summary Judgment and some more detailed information in support of my application for Summary Judgment against them.

 

Here's a quick reminder of what their application says;

 

We wish to rely on the following evidence in support of this application

 

A claim has been issued against the Defendant in the sum of £5053.73 together with a claim fee of £240.00 and costs of £100.00.

 

The sum claimed is the balance due and owing to the Claimant under a Personal Loan Agreement with account number ******** and dated 25 March 2003.

 

The Agreement provided the Defendant with a loan of £5,177.00 which together with interest charges of £583.72 was repayable by way of 108 monthly instalments of £53 .34 making a total amount repayable of £5,760 .72.

 

A Default Notice was issued on 09 August 2005 which required payment of total arrears of £168.00 by 19 August 2005 failing which the Agreement would be terminated and the full outstanding balance of £4,992.49 would become immediately due and payable. As an alternative the Defendant was given the opportunity of clearing the account by paying the sum of £4,708.12 which included the statutory rebate allowable under the Terms of the Consumer Credit Act 1974.

 

The Defendant failed to make the required payment and accordingly proceedings were issued for the outstanding default balance of £4,992.49 together with a collection charge of £832.24 and less payments made since the date of the Default Notice totalling £771.00 (described in the claim form as post referral credits).

 

A Defence has been filed by the Defendant whereby the full amount of the claim is disputed. The Defendant has questioned the brief nature of the Particulars of Claim. This claim was issued via the Claim Production Centre in Northampton and accordingly brief particulars have been provided, however the Claimant denies that it has not fulfilled its requirement to adequately plead its case. The Claimant also denies that the Personal Loan Agreement and the Default Notice have been incorrectly executed as suggested in the Defence. Copies of the Agreement and Default Notice were sent to the Defendant in accordance with his request by way of letter dated 30 August 2007. The letter also requested a review of the Defendant’s instalment arrangement which at that time was £33.00 per month however the Defendant failed to respond. The Claimant also submits that the Counterclaim shows no prospect of success and the Claimant submits that the Counterclaim should be struck out.

 

 

Attached in support of this Application are copies of the Loan Agreement, Default Notice, statement of account and letter dated 30 August 2007.

 

 

In the circumstances I do not believe that the Defendant has any real prospects of successfully defending the claim and the Applicant knows of no other reason why the disposal of the claim should await trial.

 

TAKE NOTICE THAT IF THE RESPONDENT TO THIS APPLICATION FOR SUMMARY JUDGMENT WISHES TO RELY ON WRITTEN EVIDENCE AT THE HEARING, IT MUST FILE A WITNESS STATEMENT AND SERVE COPIES ON THE CLAIMANT’S SOLICITORS, MESSRS RESTONS SOLICITORS LIMITED OF TRINITY CHAMBERS, 800 MANDARIN COURT, CENTRE PARK, WARRINGTON WAI 1GG AT LEAST SEVEN DAYS

BEFORE THE DATE SET FOR THE SUMMARY JUDGMENT HEARING

 

And here's the wording of my original application;

 

Part A - 3;

 

The Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a). The Claimant's Defence to the Defendant's Counterclaim amounts to a simple denial of the Counterclaim and offers no reasons for denial (CPR Part 16.5(2)(a)) and the Claimant has not offered a different version of events from that given by the Defendant in his Counterclaim. (CPR Part 16.2(b)) The Defendant applies to the Court to strike out the Claim and Defence to Counterclaim, awarding Summary Judgment to the Defendant (CPR Part 24.2(a)(i)), as CPR Part 24.2(b) applies to these proceedings.

 

Relevant links to the CPR Part I'm referring to are;

 

PART 16 - STATEMENTS OF CASE

PART 24 - SUMMARY JUDGMENT

 

Part C;

 

The Defendant argues that the Claimants Particulars of Claim is insufficiently stated, as it does not refer to the terms under which the claim is brought concisely and causes issues for the Defendant in he is unsure as to what the case to answer is - therefore the Defendant is unable to Defend the claim properly.

 

Despite these concerns (which were also outlined at the Defendants Defence statement at paragraph 2 and 3) the Defendant submitted a full Defence to the claim based on the dispute in question, which the Defendant has previously corresponded up on with the Claimant and their representatives. The Claimant has failed to clarify this issue and has also failed to provide such information under a CPR Part 18 request for more information from the Defendant, dated 25 September 2007, giving 14 days in which to comply with that request.

 

The Defendant argues that the Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a) and respectfully asks the Court to take action under its powers in relation to this Part to strike out the Claimants Claim due to this failure. Given that the Defendant has submitted a full Defence and Counterclaim to the Claim, the Defendant respectfully applies to the Court to award Summary Judgment to the Defendant, under CPR 24.2(a)(i), in the current proceedings in that the Claimant has no real prospect of succeeding on the claim, due to these insufficiently stated particulars of claim.

 

Further, the Defendant has submitted a full Counterclaim to the Claim brought by the Claimant - the Claimant has submitted a Defence to this Counterclaim, but the Defendant argues that this Defence to Counterclaim is a simple denial of the Counterclaim brought under CPR Part 16.5(2)(a). The Claimant has also failed to offer a different version of events from that given by the Defendant in his Defence and Counterclaim under CPR Part 16.2(b). The Defendant, therefore, also respectfully applies to the Court to strike out the Claimants Defence to Counterclaim and requests that the Court award Summary Judgment to the Defendant under CPR Part 24.2(a)(i).

 

The Defendant also argues that CPR Part 24.2(b) applies to the current proceedings, for the reasons already outlined, and that there is no compelling reason as to why the case should be disposed of at trial.

In the alternative, where this honourable Court decides not to strike out the Claimants Claim, the Defendant seeks an order from the Court that the proceedings be generally stayed for a period of 28 days to allow the Claimant to further particularise its Claim and clarify the terms under which it claims against the Defendant in such detail as required by CPR Part 16, ordering that the Claim be struck out without further notice if the Claimant does not take such action.

 

So here is the response/supporting statement;

 

1. I, car2403, the Defendant in this case, make this statement from my own knowledge or experience, except where reference is made to specific documentation, attached in the form of an exhibit, in which case this statement is made in support of that documentation.

 

 

2. This statement is designed to clarify and elucidate on the Defendants response to the Claimants Application for Summary Judgment against the Defendant and to clarify the grounds on which the Defendant seeks Summary Judgment against the Claimant.

 

THE CLAIMANTS APPLICATION FOR SUMMARY JUDGMENT

 

 

3. The Defendant objects to Summary Judgment being awarded to the Claimant for the reasons stated herein. The Defendant further objects to the Court issuing an Order striking out its Counterclaim – the Claimant (in its Application Notice) has submitted no evidence in support of this request. The Defendant therefore sees no reason why such an Order should be granted and is unable to substantially respond to the Claimants request for the Court to strike out the Counterclaim, as a result, save from the information contained herein.

 

 

4. Paragraph 1 of the Claimants Application is admitted, save for where a denial is outlined elsewhere in this document.

 

5. Paragraph 2 of the Claimants Application is denied; insofar as it is admitted (save for where a denial is outlined elsewhere in this document) that the Claimant is claiming £5,177.00 with interest of £583.72, totalling £5,760 .72, but it is denied that this is the amount that the Claimant can claim against the Defendant, since payments have been made under the agreement since the date of Default and these payments have not been taken in to account in the Claimants claim. This amount also does not appear in the statements attached in support of the Claimants Application.

 

6. Paragraph 3 of the Claimants Application is denied; insofar as the Default Notice attached to the Application Notice, on which the Claimant is relying in this Application, dated 9 August 2005, gave the Defendant until 26 July 2005 to remedy the breach; not 19 August 2005, as stated by the Claimant in its submission in Part C of the Application.

 

Such Default Notice, therefore, does not meet the form and content requirements of Part VII, specifically s.88(2), of the Consumer Credit Act 1974 – (as amended) the Claimant is therefore unable to rely on the Default Notice to seek any enforcement of the agreement – and therefore any Judgment – (whether that be Summary Judgment, as sought under CPR Part 24, or otherwise) against the Defendant, having failed to meet the requirements in allowing the prescribed period to pass before taking any enforcement action against the Defendant, as prescribed in that section of the Act.

 

The agreement has, therefore, been unlawfully Defaulted and Terminated, in that the copy Default Notices supplied are not accurate for the reasons stated in this document, along with previous submissions made by the Defendant, and fail to comply with s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Notice supplied;

i. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue, (9 August 2005) the Defendant not having lived at this address at that time and only moving to this address in September 2005. The Defendant submits, therefore, that this is not a true signed and certified copy of the original Default Notice as issued the Claimant, so the Claimant is unable to rely on it as being such; and

ii. Does not contain the correct amounts in relation to the agreement in question, at the time of issue. The outstanding balance shown on the alleged original Default Notice, dated 9 August 2005, being shown as £4,992.49 and the statement of account provided by the Claimant, showing an account balance, dated 6 August 2005, of £4,663.85 with no further statement entries between 6 August 2005 and 9 August 2005 – a discrepancy of £328.64; and

iii. The Default Notice is dated 9 August 2005 and gives until 26 July 2005 to remedy the breach outlined in the Notice. The Notice, therefore, does not provide the period of remedy prescribed under s.88 Consumer Credit Act 1974 and cannot be relied on for enforcement in the current proceedings as a result; (s.87 Consumer Credit Act 1974) and

iv. The Defendants Credit Reference file showing an original Default date of 30 April 2004 - the Default Notice being dated 9 August 2005; and

v. The Default amount being incorrect as the Default Notice includes collection charges applied to the account, which are included in the Default and Termination figures of said Notice, thereby invalidating that Notice due to the unlawful application of charges, as outlined below;

 

Duringthe period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest at the contractual rate on these charges once applied. (“Exhibit 1” attached)

 

The Defendant will further refer to 4 other account statements, (“Exhibit 2” attached) numbered ********, ********, , ********, and ********, , all of which had their account balances consolidated into this account - this is documented by the closing balances within each statement.

 

The Defendant requested copies of the original agreements for these accounts from the Claimant in a Subject Access Request under s.7 Data Protection Act 1998 – in its response, (“Exhibit 3” attached) the Claimant has admitted it is unable to provide copy agreements for accounts numbered ********, and ********, at this time and has further failed to provide these to date, despite its contention that this will take 3-4 months for document retrieval, but did provide copy agreements for accounts numbered ********, and ********, . (“Exhibit 4” attached)

 

These accounts also had various charges applied to them which are now contained within the balance of the account in question. The total of these charges being £1,100.00 and the breakdown of charges applied to against accounts being as follows;

 

 

a) Account ********, – £215.00; and

b) Account ********, – £180.00; and

c) Account ********, – £230.00; and

d) Account ********, – £230.00; and

e) Account ********, – £245.00.

 

 

The Defendant contends that no such contractual provision exists within the agreement in question, or the agreements under the accounts shown above, (which were consolidated) to allow the Claimant to levy such charges.

 

 

In the alternative, which is denied, where it is held that there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the Common Law of penalties because the charge in each instance represents a disproportionately high sum in compensation compared to the cost of the purported breach; are not in any way 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 be 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 create a profit for itself.

 

The Defendant submits that the charges levied to his account held with the Claimant are, notwithstanding the defence of the Claimant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the Defendant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the common law.

 

 

vii. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Defendant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

7. Paragraph 4 of the Claimants Application is admitted, save for where a denial is outlined elsewhere in this document.

 

 

8. Paragraph 5 of the Claimants Application is denied, save from where the Defendant admits that;

a. A full defence to the claim has been submitted; and

b. That the level of particularisation of the Claimants claim has been questioned; and

c. That the claim was issued via the Northampton County Court Bulk Processing Centre; and

d. That the letter referred to in the Claimants Application, (with attachments) dated 30 August 2007, was received, but denies that a response to that letter was not sent to the Claimants representatives.

 

 

9. Paragraph 6 of the Claimants Application is admitted.

 

 

10. Paragraph 7 of the Claimants Application is denied for the following reasons, which the Defendant relies on in full defence against the Claimants claim;

 

 

a. The Claimant has failed to fully comply with a request pursuant to s.77 Consumer Credit Act 1974, under which the Defendant requested information specifically outlined within that section, dated 11 August 2007. (“Exhibit 5” attached) Specifically, the Claimant has failed to supply the information required under s.77(1), (terms and conditions referenced within the agreement) s.77(1)(a), s.77(1)(b) and s.77(1)©. Until this information has been provided, the Claimant is in default under s.77(4) and cannot enforce the agreement via the Court; and

 

 

b. The agreement is improperly executed because it is not in the prescribed format set out in s.60, s.61 and s.64 CCA 1974 and under the Consumer Credit (Agreements) Regulations 1983.

 

The agreement was made before s.15 of theConsumer Credit Act 2006 came into force - therefore, by way of s.11 of the Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

That the agreement has been improperly executed under s.61 Consumer Credit Act 1974, in that it does not include details of the protection and remedies available under the Consumer Credit Act 1974, as prescribed in s.60(1) CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution under s.61 Consumer Credit Act 1974, (outlined in paragraph 46, above) should be dismissed under s.127(1)(i) Consumer Credit Act 1974, due to the prejudice caused to the Defendant by;

 

 

i. The Defendant’s pleadings regarding the defaulting and termination of the account outlined in paragraph 5 of this document, specifically;

 

 

1. That the account has been improperly and unlawfully Defaulted and Terminated; and

 

 

2. This improper and unlawful Default and Termination has effected, and continues to effect, the Defendant’s reputation and Credit Reference files, held by the Credit Reference Agencies;

 

 

In addition to this, that the agreement has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation, as required by s.64(1) Consumer Credit Act 1974 and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 Consumer Credit Act 1974 and the regulations there under.

 

Any application for an Enforcement Order under s.65(1) Consumer Credit Act 1974, as a result of the improper execution, under s.64(1) Consumer Credit Act 1974, (outlined in paragraph 44, above) must be dismissed by the Court pursuant to s.127(4)(b) Consumer Credit Act 1974.

 

 

c. The Defendant further makes reference to a case heard in the House of Lords, Wilson v First County Trust Ltd [2003] UKHL 40; in particular, specific reference is made to Paragraphs 49, 121, 123 and 172 of that Judgment, which outlines the Court powers in such circumstances.

 

13. The Defendant avers that the Claimants Application for Summary Judgment under CPR Part 24 should be turned aside as the Defendant has submitted a full defence to the claim brought, offering a full legal basis for each point of defence submitted, so must reasonably be said to have a realistic prospect of defending the entire claim in full.

 

 

14. The Defendant makes reference to paragraph 8 and 12, above, outlining the reasons why the Claimant is not entitled, at this time, to seek any enforcement of the agreement via the Court.

 

 

15. The Defendant therefore submits that the Claimant is unable to seek Judgment, Summarily under CPR Part 24, or any Judgment whatsoever, in relation to the agreement for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result.

 

 

THE DEFENDANTS APPLICATION FOR SUMMARY JUDGMENT

 

 

16. The Claimants bringing of this claim is unlawful, as the Claimant hasn’t followed the prescribed process (under the Consumer Credit Act 1974) for Defaulting the Defendant prior to the issue of enforcement action via the Court. Such a claim is an abuse of the Courts process under CPR Part 3.4(2) in that the claim has no realistic chance of success (the Claimant not being eligible to seek enforcement - s.87 Consumer Credit Act 1974) and does not disclose reasonable grounds for bringing the claim, (CPR Part 3.4(2)(b)) as a result.

 

 

17. The Defendant therefore requests that the Court strike out the Claimants statement of case, under its powers pursuant to CPR Part 3.4(2), and allows the case to continue on the Defendants counterclaim alone.

 

 

18. Further, the Claimants claim is insufficiently stated under CPR Part 16.2(1)(a) and CPR Part 16.4(1)(a) as it does not refer to the terms under which the claim is brought concisely. The Claimant has failed to satisfy CPR requirements to concisely state its case in that the exact contractual terms which the Defendant has averred to have breached has not being outlined; the Claimant has failed to particularise the claim in enough detail to show which payments, if any, the Defendant is averred to have not made as per his contractual agreement; a copy of the agreement was not attached to the Claimants claim form at the time of issue; a statement of account was not attached to the Claimants claim form at the time of issue.

 

 

19. Despite these concerns the Defendant submitted a full Defence to the claim based on the dispute in question, which the Defendant has previously corresponded up on with the Claimant and their representatives. The Claimant has failed to clarify this issue and has also failed to provide such information under a CPR Part 18 request for more information from the Defendant, (“Exhibit 6”, attached) dated 25 September 2007, giving 14 days in which to comply with that request.

 

 

20. The Claimant's Defence to the Defendant's Counterclaim amounts to a simple denial of the Counterclaim and offers no reasons for denial (CPR Part 16.5(2)(a)) and the Claimant has not offered a different version of events from that given by the Defendant in his Counterclaim. (CPR Part 16.2(b))

 

 

21. The Defendant applies to the Court to strike out the Claimants Claim and the Claimants Defence to Counterclaim, and to award Summary Judgment to the Defendant (CPR Part 24.2(a)(i)), as CPR Part 24.2(b) applies to these proceedings in that there is no compelling reason as to why the case should be disposed of at trial, in that the Claimant is unable to seek enforcement proceedings against the Defendant under the agreement at this time, for the reasons stated in this document and previous submissions made by the Defendant.

 

 

I, car2403, the Defendant in this case, believe that the facts stated in this document are true.

 

I think I've covered everything - this is still 7 pages long, so I've cut that HUGE skeleton argument down massively, but can't get it any more condensed without losing some of the detail.

 

I really need to send this to HFC/the Court this week, as I have to give them 14 days notice of my statement so they have time to reply 7 days before the application hearing.

 

The hearing is listed for 26 February, so they'll need to have this before the 11th - just enough time to ask you guys for any feedback, otherwise I'll be sending this off in the middle of this coming week.

 

Thanks has to go to everyone that has contributed to my fight so far already - the end is near and I'm feeling confident!

[car2403]

Here is HFC's response to my submission;

 

I, Manoj Dodrah of HFC Bank Limited. Litigation Department Camden House West

The Parade, Birmingham BI 3PY will say as follows:

 

1. I am employed by the Claimant as an Operations Manager and I am duly

authorised to make this statement on behalf of the Claimant

 

 

2. I make this statement to supplement the Claimant’s application for Summary

Judgment and for the Counterclaim to be struck out and also by way of Reply to

the Defendant’s Witness Statement dated 7 February 2008.

 

 

3. I confirm that the Claim arises from the outstanding balance due under a

Personal Loan Agreement (the Agreement) dated 26 March 2003 with account

number ******. The Agreement provided the Defendant with a loan of

£5177.00 which together with interest charges of £583.72 was repayable by way

of 108 monthly installments of £53.34 making a total amount repayable of

£5760.32. A copy of the Agreement is attached to this Statement and marked

“MD1”.

 

 

4. A Default Notice was issued on 9 August 2005 and served upon the Defendant

by 1st class post. The Default Notice required payment of the total arrears of

£168.00 by 19 August 2005 falling which the Agreement would be terminated

and the entire outstanding debit balance of £4992.49 would become

immediately due and payable. The Defendant failed to make this payment. A

copy of the Default Notice is attached to this statement and marked ‘MD2”.

 

 

5. It is acknowledged that the Default Notice attached to the Application Notice

dated 13 December 2007 is incorrect. This is not an actual copy of the Default

Notice that was issued. Actual copies of all the Default Notices issued are not

retained by the Claimant as the Claimant operates a paperless environment. In

the event that it is necessary to refer to a Default Notice post issue, a

reconstructed copy is drawn from information held on the Claimant’s system.

The corrected version appears as exhibit “MD2”.

 

 

6. The Defendant failed to comply with the terms of the Default Notice as he did

not pay the arrears of £168.00 by the due date of 19 August 2005 and

accordingly the Agreement was terminated. Attached to this statement and

marked “MD3” and “MD4” respectively are two separate statement of account.

The first of these documents is entitled “history select” and shows the financial

history of the account from inception to August 2005. The second of these

documents is entitled “statements from matter number ******, and represents

the period when the account was with instructed solicitors and is effective from

8 September 2005 to date. These documents evidence that the Defendant failed

to comply with the terms oft Default Notice.

 

 

7. The history select shows the loan amount of £5177.00 as an opening balance

dated 26 March 2003. This document shows interest charges capitalised to the

account on a monthly basis and such capitalisations appear on the history select,

where appropriate, between April 2003 and August 2005. The default balance,

however, being £4992.49 is a higher amount than the account balance per the

history select as at 6 August 2005. This is because the default balance includes

a further calculation of interest to the end of the end of the loan term, as is the

Claimant’s entitlement and also includes late payment charges which total

£230.00 not £245.00 as stated in the Defendant’s Witness Statement.

 

 

8. The late payment charges appear in the history select as transactions “ADMIN

FEE ASSESS” and are added in accordance with the Claimant’s entitlement as

defined in the Terms and Conditions of the Agreement. This entitlement would

also have applied to all the other account to which the Defendant refers.

 

9. Proceedings were issued by the Claims Production Centre on or about 19

September 2007. Of necessity when using this facility the Claimant’s

Particulars were brief in nature and, as is stated by the Defendant, the

Agreement and statement of account were not attached to the Claim form. The

Claim form gave credit for the payments made by the Defendant after the issue

of the Default Notice in the total amount of £771.00. These are described in the

Particulars of Claim as “post referral credit”.

 

10. The Claim also includes a collection charge of £832.24 added in accordance

with the Claimant’s entitlement under the Terms and Conditions of the

Agreement. This charge represents the Claimant’s costs of collection of a

delinquent account

 

11. In my respectful submission the Claimant is entitled to Summary Judgment

against the Defendant as pleaded and further submit that the counterclaim has no

merit and should be dismissed.

 

 

STATEMENT OF TRUTH

…

 

 

Attached;

• Agreement; http://aycu13.webshots.com/image/44132/2001156720842389488_rs.jpg
  
• Terms and conditions; http://aycu03.webshots.com/image/46522/2001119932828724961_rs.jpg
  
• Default Notice, as here; http://aycu13.webshots.com/image/44492/2002200171804918044_rs.jpg and http://aycu19.webshots.com/image/45618/2001148647503649765_rs.jpg
  
• Statements of account.

I need to prepare my response this evening and fax it to the Court/HFC tomorrow. (They've deliberately sent this bundle to me, late, IMHO) I think I can use this to my advantage, so I'm working on that now. Any comments on what should be included at this stage?

 

The Summary Judgement Application Hearing is next Tuesday morning.

[robcag]

Hi Chris

 

It seems to me like they are continuing to blindly rely on and insist that their dodgy documents are kosher. When they get things wrong (eg default notice) then they seem to think they can have another try and hope they can get things right next time.

 

I think you need to repeat your refutation of their documents and the supporting case law, as you have done further up the thread.

Sorry I can't be more helpful, but I'm right behind you and wishing you all the best in this.

Rob

[car2403]

Thanks Rob - always nice to know I'm not alone. (Feels like it sometimes)

 

Thinking about this, what they should have submitted was a response to my application for striking their claim out and seeking summary judgment against them - what they have done is just repeat the bleeding obvious!

 

The technicality they seem to have missed is that they haven't objected to me seeking summary judgment! Re-submitting what was already submitted as part of their application for summary judgment against me, isn't a sufficient reply to my application against them - especially as I've responded to their application and offered a different view, ripping it apart in the process.

 

Realistically, as the hearing on Tuesday is for SJ on both sides, I can't see the Judge striking out their claim for failure to particularise sufficiently - especially as they've further clarified the details of the claim after issue. I also can't see the Judge paying much attention to the details of the applications and, as Gary mentioned a few pages back, the fact we both think we should have SJ would naturally mean that the case should go to trial. (Even if I say that through gritted teeth)

 

I can't see what benefit responding to this will have now, so I may just not bother, as there's no further value to be gained from it. The only thing I can gain is that I can pull their documentation apart again;

• Default Notice; covered by Rob above, but they seem to think they can reconstruct this important document "willy-nilly", even after relying on examples of this document that is different to the one they've now submitted and supplying a, further different, copy of a NOD when being asked for an original signed certified copy.
  
• Terms and conditions; the T&C's they've supplied "look" totally different to the agreement - they have a different font, of a different size, for example - and the page the T&C's are on doesn't have the reference numbers at the bottom of the page, (as on the agreement) to suggest that it's part of the same document! I'll be relying on one of the other Wilson cases for this;

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

 

"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 Schedule 1."

 

I'll also be highlighting the fact that the agreement itself contains an "Important - use of your information" section and the T&C's contain the same section! What's the chances that HFC would need to go to the extent of entering that same section twice?

[car2403]

If I do bother to send something, it will be something like this; (I've done this to make sure I keep on track at the hearing anyway)

 

1. I, car2403, the Defendant in this case, make this statement from my own knowledge or experience.

 

2. This statement is designed to clarify and elucidate on the Defendants response to the Claimants reply to the Defendants Application for Summary Judgment against the Claimant and to further clarify the grounds on which the Defendant seeks Summary Judgment against the Claimant. Specific reference is made to the Claimants Witness Statement, dated 19 February 2008.

3. Paragraph 1 and Paragraph 2 is neither admitted nor denied, such detail being outside the knowledge of the Defendant.

4. Paragraph 3 is denied, save where the Defendant has admitted that contained in Paragraph 5 of its own Witness Statement, dated 7 February 2008.

5. Paragraph 4 is denied, in that the Default Notice attached to the Claimants Witness Statement is not a true signed certified copy of said notice.

6. Paragraph 5 is neither admitted nor denied, such detail being outside the knowledge of the Defendant.

7. The Defendant will aver that the Claimant, in this submission at paragraph 5, has admitted that it does not hold a true signed certified copy of said notice, any document being relied on in its application or the claim itself being reconstructed from its own internal records, and as such has failed to meet the proof required to pursue its own claim as a result of this admission. The Defendant respectfully requests that the Court strike out the Claimants application for summary judgment, along with the claim itself, as the Claimant has failed to comply with the prescribed process for Defaulting the Defendant required by s.87/s.88 Consumer Credit Act 1974 and is unable to request judgment, or enforcement of the agreement, as a result.

8. Paragraph 6 is denied, save for where an admission has already been made in these proceedings.

9. Paragraph 7 and 8 is denied, in that the Claimant is relying on terms that do not appear within the agreement itself. In any event, such agreement is unenforceable for the reasons stated herein and in the Defendants submissions to date.

10. Paragraph 9 is admitted, save for where a denial of these facts have already been made in these proceedings.

11. Paragraph 10 is denied, in that the Claimant is relying on terms that do not appear within the agreement itself. The Claimant has also failed to provide any evidence in support of this charge reflecting the actual cost to it as a result of the Defendants alleged breach of contract. In any event, such agreement is unenforceable for the reasons stated herein and in the Defendants submissions to date.

12. Paragraph 11 is denied, in that the Defendant believes that the Claimant is not entitled, for the reasons stated herein and in previous submissions to date, to seek judgment, summarily or otherwise, and that the Defendants Counterclaim has merit and should not be dismissed as a result.

13. Further more, the Claimant has supplied terms and conditions alleged to be related to the agreement supplied. The Defendant denies that these terms and conditions relate to the agreement, for the following reasons;

a. The agreement contains “reference numbers” at the bottom of the page, such reference numbers not appearing on the terms and conditions supplied by the Claimant; and

b. The agreement contains a section headed “IMPORTANT – USE OF YOUR INFORMATION” and the alleged terms and conditions supplied by the Claimant also contains such a section.

As a result, the Defendant submits that the terms and conditions supplied by the Claimant, cannot conceivably be considered to relate to the agreement in question in anyway whatsoever. Where the Claimant continues to rely on such, the Defendant will put it to strict proof of such terms and conditions relation to the agreement and will ask the Court to dismiss the terms and conditions submitted if the Claimant is unable to meet this requirement.

In relation to this, the Defendant will rely on the Judgment of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299. In particular;

“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 Schedule 1”

 

The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

“What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…”

14. The Defendant, therefore, requests that the Court dismiss the Claimants application for Summary Judgment and award Summary Judgment in favour of the Defendant, due to the issues contained herein and in previous submissions by the Defendant.

 

I, car2403, the Defendant in this case, believe that the facts stated in this document are true.

 

Signed:

[car2403]

I may be verging on using such a word, as they have blatantly relied on different documents throughout these proceedings that have "changed" through time - and in doing so, they haven't stated the source of the document recreated.

 

I'll be going through what they've sent me with a fine tooth comb looking at the wording used in the documentation to see what that throws up.

[gh2008]

Just a couple of points

They refer to an agreement dated 26th March - the agreement they attach was prospectively dated by them on 23rd and dated by you 25th. Is there another document dated 26th? maybe a reconstructed one

 

I can't read the whole thread again but I presume you have no recollection of receiving a valid Default Notice.

 

The T&C are NOT on the back of the agreement, the turned over corner on the photocopy is on the wrong side.

 

I presume they will be bringing the original agreement to the Court not a copy - reconstructed or not - as, going by their track record, I cannot see how, when they have sent several different Default Notices as 'true copies', they can be trusted without the original agreement.

 

Also are you still questioning the Interest on the agreement?

Yes the APR is correct in itself BUT it is not correct as an interest rate for the agreement.

They must include an accurate interest rate, it's a prescribed term. The APR is not prescribed (IIRC) but should be included for use of the consumer when comparing 'deals'

 

I'm still looking through it all again - lots of confusing paperwork isn't there with all the different accounts

 

Good luck

gh

[Paintball]

I couldn't resist adding this little gem;

 

It's a bobby dazzler ... let's hope the judge takes the time and trouble to read it and the other information, and understand its relevance ...

 

[gh2008]

Shamelessly swiped from a current PT defence

The emboldening

 

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 judgement appears to 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

[car2403]

Just a couple of points

They refer to an agreement dated 26th March - the agreement they attach was prospectively dated by them on 23rd and dated by you 25th. Is there another document dated 26th? maybe a reconstructed one

 

I've included the prospective agreement arguments in my defence, but it doesn't sit well with me as I may be left open to a counterclaim for the loan amount, which I have received, even if the interest/charges are unenforceable - something I'm trying to avoid by arguing the debt is unenforceable because the agreement is improperly executed due to missing prescribed terms.

 

This is the agreement they are relying on, (the other agreements are probably relating to the other claims, which makes the thread a little confusing to understand)

 

I can't read the whole thread again but I presume you have no recollection of receiving a valid Default Notice.

 

Correct.

 

The T&C are NOT on the back of the agreement, the turned over corner on the photocopy is on the wrong side.

 

Good point, I'd missed that. I'll bring it up on Tuesday if it becomes relevant, but the bits I've include should be enough, IMHO.

 

I presume they will be bringing the original agreement to the Court not a copy - reconstructed or not - as, going by their track record, I cannot see how, when they have sent several different Default Notices as 'true copies', they can be trusted without the original agreement.

 

I believe so. The danger is that what they bring is enforceable and I have to "think on my feet" to counter that document - I do still have the unlawful Default amount angle to go with, though, so not too bothered about that.

 

The reconstructed copies thing is definately adding to my case against them, IMHO.

 

Also are you still questioning the Interest on the agreement?

Yes the APR is correct in itself BUT it is not correct as an interest rate for the agreement.

They must include an accurate interest rate, it's a prescribed term. The APR is not prescribed (IIRC) but should be included for use of the consumer when comparing 'deals'

 

Good spot! I'd always assumed that APR was a statement of interest rate, but thinking about it now, it can't be as APR would include everything, not just the rate of interest applied.

 

I'll have to look in to this further, as I've missed this completely, (although remember seeing some posts earlier in the thread) as a lack of interest rate means ANOTHER missing prescribed term.

 

Cheers gh!