Court Claim - LOWELL PORTFOLIO I LTD / HALIFAX - 18-12-2017

[R0b]

R0b However, surely if you are saying there was no DN then how can you argue it did not say it was served under S87(1) so to speak

Sorry Warwick, not sure I understand your question, can you elaborate?

[warwick65]

Hello

This might be a bit late (hopefully not) but a few drafting points and some other suggestions to include in the defence.

* Don't use the word 'I' but instead say the Defendant
* Don't use capital letters so where you references Lowell Solicitors and Lowell Portfolio and Halifax I would put them in lower case, not all capitals e.g. Lowell Solicitors and Halifax and Lowell Portfolio etc.

Additions to include as part of your defence


I don't think this has any particular relevance, do you?



You may wish to cover this off in slightly more detail. For example, you could say:

1. In this Defence:

(a) any allegation which is not admitted by the Defendant, the Claimant is required to prove;

(b) all allegations that are not specifically pleaded to by the Defendant are denied; and

(c) entirely without prejudice to the foregoing, the Defendant denies each and every allegation in the Particulars of Claim.



You could expand this by saying something like:

"The Defendant denies that he was in breach of the agreement. The Defendant does not recall of ever entering into an agreement with Halifax for the provision of credit or otherwise on the date alleged or at all and the Defendant requires the Claimant to prove that such an agreement was entered into."



They have not actually alleged in the Particulars of Claim that a default notice was served. You could, for example, use the alternative argument to the point about never entering into the agreement you made in point 4 such as the following:

"If (which is denied), contrary to paragraph X, the Defendant did enter into an agreement with Halifax and was in breach of the same, then the Defendant will say that the breach is not enforceable.

PARTICULARS

(a) Contrary to s.87(1) of the Consumer Credit Act 1974 (the "CCA") the Claimant failed to serve on the Defendant any default notice;

(b) Contrary to s.88 of the CCA and Regulation 2(2)(a) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ("the Regulations"), the default notice served on the Defendant did not state that it was served under s.87(1) of the Act;

(c) Contrary to s.88 of the CCA and Regulation 2(2)(b) of the Regulations, the default notice did not contain the information set out in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of Schedule 2 to the Regulations;

(d) Contrary to s.88 of the Act and Regulation 2(6) of the Regulations, the wording of the default notice failed to reproduce the wording of the Schedule to the Regulations without alteration or addition;

(e) Contrary to s.88(2) of the CCA , the default notice specified a date for remedying the breach which was less than 14 days after the date of service of the default notice; and

(f) Contrary to section 136 of the Law of Property Act 1925, no notice of assignment was served on the Defendant. The assignment was therefore an equitable assignment not a legal one. Accordingly, the Claimant has no legal right to enforce the agreement in its own name.

(g) Contrary to s.78(1) of the CCA, the Claimant failed to provide a copy of the agreement."




If you use the wording in the second point I made, then you won't need the above.

That's just a quick starting point, there's probably other things that could be removed/amended but including some or all of the above beefs up your defence somewhat and quantifies exactly why they can't enforce their claim.

R0b


maybe I have misunderstood, still trying to navigate around this new look and multi quote

In the particulars above point a) says:
Contrary to s.87(1) of the Consumer Credit Act 1974 (the "CCA") the Claimant failed to serve on the Defendant any default notice;

So I take it this means total denial that any default notice was served

Yet in the following points the claim is that the default noticed missed all the relevant legislation i.e
(b) Contrary to s.88 of the CCA and Regulation 2(2)(a) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ("the Regulations"), the default notice served on the Defendant did not state that it was served under s.87(1) of the Act;

(c) Contrary to s.88 of the CCA and Regulation 2(2)(b) of the Regulations, the default notice did not contain the information set out in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of Schedule 2 to the Regulations;

(d) Contrary to s.88 of the Act and Regulation 2(6) of the Regulations, the wording of the default notice failed to reproduce the wording of the Schedule to the Regulations without alteration or addition;

(e) Contrary to s.88(2) of the CCA , the default notice specified a date for remedying the breach which was less than 14 days after the date of service of the default notice; and

I suppose what I was saying is, how can you deny something about a document you never received

It seems a bit like saying I did not sign an agreement but the agreement I signed did not contain the prescribed terms

As I say, maybe i am missing the point but do you see where I am coming from

[R0b]

Ah I see, it was something I cobbled together relatively quickly in light of the deadline that the OP had but I do see your point. I suppose what I was trying to get at was to say that the Claimant failed to serve a DN on the defendant and in doing so, failed to comply with all of the relevant provisions for serving a DN as well.

So it's a sort of two pronged attack whereby even if the claimant can prove a DN was served correctly, it then has to prove it satisfied all the provisions under the CCA and Regulations in terms of the DN being served.

Like I said, a bit of a quick draft and perhaps could have been better worded I suppose.