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I apologise upfront for the long post but it is the only way of getting the information needed accross!
My OH had a credit card with Yorkshire Bank, due to unforseen circumstances she found herself in a position where she was unable to make the monthly payments needed. Yorkshire bank eventually passed the details onto a DCA. The originial DCA was very understanding and a repayment plan/agreement was started with continued without any major problems. Yorkshire Bank then decided to pass it onto a different DCA, again an agreement reached and payments continued. Yorkshire Bank then decided to use a different DCA to which payments have been made monthly since August 2008. In February 2010 mu OH received a letter from Mortimer Clarke saying that they were acting on behalf of Marlin Europe 1 Ltd. When contacted by phone the response was that is was a debt from Yorkshire Bank Credit Card - yet again another DCA, when Mortimer Clarke were told about the other DCA and the difference in the account balance they said that the information they had from Yorkshire Bank was that no payment had been made for other 2 years.
Told to carry on paying other DCA incase it was for a different debt.
Claim form arrived from Nottingham dated 3 March 2010, with the following particulars of claim.
"By an agreement in writing between Clydesdale Bank plc trading as Yorkshire Bank ("CYRB") & the defendant dated 02/05/2000 ("the agreement") CYRB agreed to issue the defendant with a credit card upon the terms & conditions set out therein. In breach of the agreement the defendant failed to make payments of not less than the minimum payment shown on the monthly statement. CRYB served a default notice on the defendant stating the amount due & requiring the defendant to pay same. The defendant failed to pay & the agreement was terminated. The agreement was assigned to the claimant on 18/09/2009. The claimant has complied with sections III & IV of the practice direction - pre-action conduct.
The claimant therefore claims:
1. 2730.02
2. Interest pursuant to section 69 of the County Courts Act 1984, namely 1435.56 & continuing until Judgment or sooner payment at the rate of 0.60"
The defence that was filed was as follows:
"
Defence and Counterclaim
Claim number
Claimant
MARLIN EUROPE 1 LIMITED
Defendant
How much of the claim do you dispute?
I dispute the full amount claimed as shown on the claim form.
Do you dispute this claim because you have already paid it?
No, for other reasons.
Defence
1. 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.
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands
at present, inter alia: -
3. 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 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.
4. Consequently, it is proving difficult to plead to the particulars as matters
stand
5. Further to the case, on 10 March 2010 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
referred to in the particulars of claim 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.
6. 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
7. 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
8. The courts attention is drawn to the fact that where an agreement does not have
the prescribed terms as stated in point 7 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
9. Notwithstanding points 7 and 8, any such agreements must be signed in the
prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
10. The claimant is therefore put to strict proof that such a complaint document
exists
11. 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.
12. Notwithstanding point 11, 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)
13. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)
14. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged
agreement is properly executed, contain the required prescribed terms, or correct
figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
15. 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.
16. Alternatively, I respectfully request a stay in proceedings until such time as
the claimant complies with the requests outlined in paragraph 5 above or until the
court orders its compliance with the same. I will then be in a position to file a
fully particularised defence and counterclaim and will seek the courts permission to
amend my statement of case accordingly.
17. 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 in 02 May 2000 the Consumer Credit Act 1974 is the relevant act in this
case.
Signed
I am the Defendant - I believe that the facts stated in this form are true
25/03/2010
Defendant's date of birth
Address to which notices about this claim can be sent to you
Telephone number
E-mail
"
Mortimer Clarke's response was the following set of questions & the answers that they were given:
"
Following receipt of your CPR Part 18 Information Request, find attached my response to the requested information.
DEFENDANT’S RESPONSE TO THE CLAIMANTS REQUEST FOR FURTHER INFORMATION PURSUANT TO CPR PART 18
Further to the request dated 1 April 2010, the defendant provides the following responses but does not see the relevance of request number 1. The defendant further feels that this request is an attempt to intimidate the defendant.
1. In relation to the defence dated 25 March 2010
Request
The defendant is requested to:-
(a) confirm if the defence was obtained via an internet website where defence templates are available.
(b) If the answer to (a) above is yes, please identify the website in question and your user name.
Response
(a) the defence was obtained from a website
(b1) the website in question is the “Consumer Action Group” the website address is The Consumer Forums - Page One
(b2) no user name used to obtain the information
2. Of “On 10 March 2010 I requested disclosure of information pursuant to the Civil Procedure Rules…….”
Request
The defendant is requested to:-
(a) confirm how she made the disclosure request and to whom it was made.
(b) if by letter please supply a copy of the letter in question.
(c) confirm if the letter was a template version obtained from an internet website, if so please identify the website in question.
(d) state the precise Civil Procedure Rules to which she is referring.
Response
(a) the disclosure request was made by letter to Marlin Europe 1 Limited
(b) copy of the letter attached to this response
(c) the letter was an amalgamation of letters requesting a Subject Access Request pursuant to s7 of the Data Protection Act and a request under Part 31.14 of the Civil Procedure Rules
(d) see response (c) above
3. In relation to documentation in your possession:-
(a) please confirm if you have in your possession any documents, notices, letters or account statements relating to this debt. If so please provide a list.
(b) if no or partial documentation is in your possession please provide an explanation as to why they are no longer available for disclosure/inspection.
Response
(a & b) The only letter that I have in my possession is a letter dated 24 November 2007 from Iqor, I cannot find anything else that relates to this matter, hence the request that was made on the 10 March 2010.
Dated 15 April 2010
"
Nothing heard from either Marlin or Mortimer Clarke until Friday 8 October 2010 when a large envelope arrived which contained an offer to reduce the amount that they are claiming provided that monthly repayments are made and copies of the "application form" submitted by my OH when she applied for the credit card, print out showing payments that have been made to the DCA's upto 2008 BUT not showing any payments made to the DCA that took over in August 2008! A letter allegedly from Yorkshire Bank stating that the debt had been assigned to Marlin - which was never received and a letter from Marlin stating that the debt had been assigned -- again never received.
Marlin/Mortimer Clarke claim the debt has been assigned to them, but my OH had contact from yet another DCA on Yorkshire Banks behalf in April 2010 -- after the alleged assignment - with a totally different balance to Yorkshire Banks / Marlin / Mortimer Clarke and ourselves.
In August 2010 yet another DCA got in contact again on Yorkshire Banks behalf.
That is all the information that I have upto this point.
My questions/quiries are:
Surely if the debt has been assigned then Yorkshir Bank are no longer entitled to contact my OH?
From my calculations the amount of interest that Marlin/Mortimer Clarke are claiming is for the last 6 years, if that is correct how can they do that?
From reading the particulars of claim; Marlin are claiming that no payment were made since the default notice was issued with a date of 22 August 2003. If that is the case doesn't it mean that the debt is unenforcable?
I am tempted to draft a revised defence and issue a counterclaim asking that the debt be struck off and the monies paid by my OH over the years be returned plus interest at the statutory rate of 8% p.a.
Any and all help much appreciated
My OH had a credit card with Yorkshire Bank, due to unforseen circumstances she found herself in a position where she was unable to make the monthly payments needed. Yorkshire bank eventually passed the details onto a DCA. The originial DCA was very understanding and a repayment plan/agreement was started with continued without any major problems. Yorkshire Bank then decided to pass it onto a different DCA, again an agreement reached and payments continued. Yorkshire Bank then decided to use a different DCA to which payments have been made monthly since August 2008. In February 2010 mu OH received a letter from Mortimer Clarke saying that they were acting on behalf of Marlin Europe 1 Ltd. When contacted by phone the response was that is was a debt from Yorkshire Bank Credit Card - yet again another DCA, when Mortimer Clarke were told about the other DCA and the difference in the account balance they said that the information they had from Yorkshire Bank was that no payment had been made for other 2 years.
Told to carry on paying other DCA incase it was for a different debt.
Claim form arrived from Nottingham dated 3 March 2010, with the following particulars of claim.
"By an agreement in writing between Clydesdale Bank plc trading as Yorkshire Bank ("CYRB") & the defendant dated 02/05/2000 ("the agreement") CYRB agreed to issue the defendant with a credit card upon the terms & conditions set out therein. In breach of the agreement the defendant failed to make payments of not less than the minimum payment shown on the monthly statement. CRYB served a default notice on the defendant stating the amount due & requiring the defendant to pay same. The defendant failed to pay & the agreement was terminated. The agreement was assigned to the claimant on 18/09/2009. The claimant has complied with sections III & IV of the practice direction - pre-action conduct.
The claimant therefore claims:
1. 2730.02
2. Interest pursuant to section 69 of the County Courts Act 1984, namely 1435.56 & continuing until Judgment or sooner payment at the rate of 0.60"
The defence that was filed was as follows:
"
Defence and Counterclaim
Claim number
Claimant
MARLIN EUROPE 1 LIMITED
Defendant
How much of the claim do you dispute?
I dispute the full amount claimed as shown on the claim form.
Do you dispute this claim because you have already paid it?
No, for other reasons.
Defence
1. 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.
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands
at present, inter alia: -
3. 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 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.
4. Consequently, it is proving difficult to plead to the particulars as matters
stand
5. Further to the case, on 10 March 2010 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
referred to in the particulars of claim 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.
6. 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
7. 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
8. The courts attention is drawn to the fact that where an agreement does not have
the prescribed terms as stated in point 7 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
9. Notwithstanding points 7 and 8, any such agreements must be signed in the
prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
10. The claimant is therefore put to strict proof that such a complaint document
exists
11. 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.
12. Notwithstanding point 11, 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)
13. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)
14. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged
agreement is properly executed, contain the required prescribed terms, or correct
figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974
15. 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.
16. Alternatively, I respectfully request a stay in proceedings until such time as
the claimant complies with the requests outlined in paragraph 5 above or until the
court orders its compliance with the same. I will then be in a position to file a
fully particularised defence and counterclaim and will seek the courts permission to
amend my statement of case accordingly.
17. 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 in 02 May 2000 the Consumer Credit Act 1974 is the relevant act in this
case.
Signed
I am the Defendant - I believe that the facts stated in this form are true
25/03/2010
Defendant's date of birth
Address to which notices about this claim can be sent to you
Telephone number
"
Mortimer Clarke's response was the following set of questions & the answers that they were given:
"
Following receipt of your CPR Part 18 Information Request, find attached my response to the requested information.
DEFENDANT’S RESPONSE TO THE CLAIMANTS REQUEST FOR FURTHER INFORMATION PURSUANT TO CPR PART 18
Further to the request dated 1 April 2010, the defendant provides the following responses but does not see the relevance of request number 1. The defendant further feels that this request is an attempt to intimidate the defendant.
1. In relation to the defence dated 25 March 2010
Request
The defendant is requested to:-
(a) confirm if the defence was obtained via an internet website where defence templates are available.
(b) If the answer to (a) above is yes, please identify the website in question and your user name.
Response
(a) the defence was obtained from a website
(b1) the website in question is the “Consumer Action Group” the website address is The Consumer Forums - Page One
(b2) no user name used to obtain the information
2. Of “On 10 March 2010 I requested disclosure of information pursuant to the Civil Procedure Rules…….”
Request
The defendant is requested to:-
(a) confirm how she made the disclosure request and to whom it was made.
(b) if by letter please supply a copy of the letter in question.
(c) confirm if the letter was a template version obtained from an internet website, if so please identify the website in question.
(d) state the precise Civil Procedure Rules to which she is referring.
Response
(a) the disclosure request was made by letter to Marlin Europe 1 Limited
(b) copy of the letter attached to this response
(c) the letter was an amalgamation of letters requesting a Subject Access Request pursuant to s7 of the Data Protection Act and a request under Part 31.14 of the Civil Procedure Rules
(d) see response (c) above
3. In relation to documentation in your possession:-
(a) please confirm if you have in your possession any documents, notices, letters or account statements relating to this debt. If so please provide a list.
(b) if no or partial documentation is in your possession please provide an explanation as to why they are no longer available for disclosure/inspection.
Response
(a & b) The only letter that I have in my possession is a letter dated 24 November 2007 from Iqor, I cannot find anything else that relates to this matter, hence the request that was made on the 10 March 2010.
Dated 15 April 2010
"
Nothing heard from either Marlin or Mortimer Clarke until Friday 8 October 2010 when a large envelope arrived which contained an offer to reduce the amount that they are claiming provided that monthly repayments are made and copies of the "application form" submitted by my OH when she applied for the credit card, print out showing payments that have been made to the DCA's upto 2008 BUT not showing any payments made to the DCA that took over in August 2008! A letter allegedly from Yorkshire Bank stating that the debt had been assigned to Marlin - which was never received and a letter from Marlin stating that the debt had been assigned -- again never received.
Marlin/Mortimer Clarke claim the debt has been assigned to them, but my OH had contact from yet another DCA on Yorkshire Banks behalf in April 2010 -- after the alleged assignment - with a totally different balance to Yorkshire Banks / Marlin / Mortimer Clarke and ourselves.
In August 2010 yet another DCA got in contact again on Yorkshire Banks behalf.
That is all the information that I have upto this point.
My questions/quiries are:
Surely if the debt has been assigned then Yorkshir Bank are no longer entitled to contact my OH?
From my calculations the amount of interest that Marlin/Mortimer Clarke are claiming is for the last 6 years, if that is correct how can they do that?
From reading the particulars of claim; Marlin are claiming that no payment were made since the default notice was issued with a date of 22 August 2003. If that is the case doesn't it mean that the debt is unenforcable?
I am tempted to draft a revised defence and issue a counterclaim asking that the debt be struck off and the monies paid by my OH over the years be returned plus interest at the statutory rate of 8% p.a.
Any and all help much appreciated
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