Help required for a fully pleaded defence for a CCJ over credit card fraud

[Amethyst]

See http://www.legislation.gov.uk/uksi/1...chedule/6/made
for the required terms under https://www.legislation.gov.uk/ukpga/1974/39/section/61

[pt2537]

Hi Amethyst,

Thanks for all your help and advice so far. I have a few days left before I submit my defence just a few Q's if you could kindly respond please.

I will need to get an handwriting expert but what if that report goes against me. I say this because the Judge said having looked at the claim for nearly 12k that I should try to negotiate something over the next 6 months and maybe have to pay a few grand otherwise risk going to trial and that would set the loser back by 30-40K. Does that look realistic to you after all there is a chance that MC solicitors may not want to take that risk either.

Also I have been reading about pre 2007 credit agreements and the possibility that they may not be enforceable under certain circumstances. Could you shed some light on this also please.... Just need to know if that is possible and can I submit that as a point in my defence.

I dont think youre looking at the right point, the fact that the credit agreement is possibly unenforceable is a red herring, if you never contracted with the creditor then thats the end of it, if you start looking at the agreement then to argue unenforceability in my view would require you to accept that you signed the agreement.

I think that you should look at whether you need an experts report etc

[anila]

See http://www.legislation.gov.uk/uksi/1...chedule/6/made
for the required terms under https://www.legislation.gov.uk/ukpga/1974/39/section/61

Thanks for that reference, it seems a bit complicated.....

My basic point was are there any requirements that are absolutely necessary otherwise this contract may be invalid. I am trying to analyse this agreement and it isn't for example signed by the lender or dated by them. Would that render this pre 2007 agreement unenforceable... ?.

[anila]

I dont think youre looking at the right point, the fact that the credit agreement is possibly unenforceable is a red herring, if you never contracted with the creditor then thats the end of it, if you start looking at the agreement then to argue unenforceability in my view would require you to accept that you signed the agreement.

I think that you should look at whether you need an experts report etc

Thanks for that, I appreciate it.

My point simply was in view of what the judge said and the chance that if I get lumbered with this debt and am not able to prove otherwise then I was looking at options. As for what you say "to argue unenforceability in my view would require you to accept that you signed the agreement" can not a contract be deemed invalid or unenforceable by virtue of the fact that it has essential details missing. In this case for example, it is not signed or dated by the lender, would that be a valid argument? Just asking...

[anila]

Just as a starting point - with what little info there is


1 The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all.

2 The Defendant denies entering into any credit agreement with the Claimant or the Original Credit ' BARCLAYCARD ' as set out in paragraph 1 of the Particulars of Claim. The Claimant is put to strict proof thereof.

3 The Defendant has never used any 'BARCLAYCARD' credit card to make any transactions. The Claimant is required to provide a full list of transactions in order the Defendant can plead further in this respect.

4 It is the Defendant's contention that on [date of agreement] the Defendant's indentity was stolen by some person whose identity is unknown to the Defendant, used to make an application for a credit agreement with 'BARCLAYCARD' and thereafter used by that person without the knowledge or consent of the Defendant.

5. The Defendant first became aware of the existence of the account, and thus became aware of the identity theft, on [ date] on receipt of a letter from the Claimant.

6. The Defendant notified to the Claimant that the account did not belong to them and requested further information. ( DETAILS OF LETTERS ETC )

7. The Claiamnt failed to provide any information.

8. The Defendant heard nothing further from the Claimant until receipt of xxxxxxxxxxxx

9. The Defendant has sent a formal Subject Access Request to 'BARCLAYCARD' in order to obtain details of the original application and transaction data with a view to making a complaint to the Claimant and to 'BARCLAYCARD'.

10: The Defendant has reported the identity theft to ACTION FRAUD / POLICE etc Crime reference: xxxxxxx

11: The Defendant has checked their credit file and xxxxxxxxxxxxxxxx. The Defendant has made a complaint to the credit reference agencies about the reports on the credit file due to identity theft and awaits a response.

12: The Claimant is put to strict proof that the Defendant applied for / opened any account with ' BARCLAYCARD ' as alleged.

13: The Defendant has further sent a formal request for a copy of the Credit Agreement pursuant to section 78 of the COnsumer Credit Act 1974 which has not been complied with by the Claimant and thus the debt is unenforceable.

14. In the alternative, by reason of sections 83 and 84 of the Consumer Credit Act 1974, the Defendant is not liable to the Claimant in respect of the transactions made on the account. The Claimant is put to strict proof thereof.

Hi Amethyst,

Thanks for all your help and all the other guys that have assisted so wonderfully. Could you kindly help me with the opening and ending of my defence statement, just something to make it acceptable in court.

The points I would like to include are a) that this is not mine, b) At the time the CCJ in default was issued in March they had not complied with the CCA request until June. and c) that in the event I am lumbered with this debt then I shall be challenging it's validity of the credit agreement and whether this pre 2007 agreement is enforceable.

Would that be ok in your view...