*** DISCONTINUED ** defence of CCJ from IDEM

[charitynjw]

& 4) C have not issued me with a Default Notice

Let's deal with this part, as it is a very hot topic at the moment due to a very recent & important court case.

As you are probably aware, your agreement is governed via the Consumer Credit Act 1974. (CCA 1974)
(They are often referred to as regulated agreements).
*However, your agreement is a bit special, because it was executed before April 2007. Hence post #7 &; so in certain instances irredeemably unenforceable.

More on this later.....let's stick with the Default Notice for now.
A credit card agreement (or as it is known in CCA 1974, a running-account credit agreement) requires payments to be made on a regular basis, typically once a month.

Missed payments are a breach of the agreement, and if a number of them are missed consecutively, a Default Notice (DN) under section 87 CCA 1974 is often issued by the creditor.
The creditor has to issue a DN before they can terminate the agreement. They're not legally bound to issue the DN at this stage (in fact they could put off issuing the DN for years, according to that important court case.)

But most of the credit card providers issue the DN after 3 or so missed payments.

The DN must be in what is called a prescribed format.
It must inform the debtor of the exact nature of the breach (the 3 or so missed monthly payments), what the debtor has to do to remedy it (pay the 3 payments) &; state the date by which to do so.
Usually [**xx number] of days..

If the breach is remedied, no further action is taken, but if it is not remedied, the creditor is allowed to terminate the agreement. & demand the full amount outstanding on the agreement.

Again, a fairly simplistic explanation, but basically that is the gist of it.

**Currently the number of days is 14.
But because your agreement is pre April 2007, the number then was 7 days.
DN's issued after April 2007 will allow 14 days from receipt to remedy the breach.

The Claimant should b able to provide an accurate copy of the agreement (reconstituted acceptable if accurate), along with a copy of the original T&Cs & any variations applicable up to the termination date if a formal CCA s78 request is made (£1 payment required.)

[charitynjw]

Great.. thanks - so in simple terms - it's over to them to prove I owe the debt?

2. I have in the past had financial dealings with Tesco Bank.l do not recall the precise details of any agreement but do recall it was on or about ****.

- To clarify I am saying I have dealt with Tescos Bank but I am unsure about precise details

Paragraph 2 is noted & paragraph 3 is denied as I have never entered into any agreement with the claimant therefore I can not be in any breach of any terms as no agreement exists with the claimant. - Is this argument valid in legal terms?

No signed agreement......

[charitynjw]

4.Paragraph 4 is denied as above because the claimant could not have issued a Default Notice as they only bought the debt ****** and as far as I can recall any breach with the original creditor would have been on or around ****. The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have been already terminated before assignment.

Does this argument hold any weight? They have not been able to supply a Default Notice from Tesco but they say Tesco have confirmed the date that the default notice was issued. Does it matter to the judge if they are not able to produce documents they say exist - is it enough for the judge that they say Tescos have confirmed the date of issue?

And similarly with my argument about no prescribed terms and conditions with the original credit card application- is the onus on them to provide evidence they were issued or is the onus on me to prove I did not receive them. Can I just say I did not receive them or do I have to qualify that?

Sorry for the long old post..& it's late.. i wish I had a fairy god-lawyer!! I have two days to complete- thank you so much for your time thus far - if i can post up my defence tomorrow and you can cast your eye over it that would be marvellous

Yes, your argument is correct. So add

'I require the Claimant to provide documented verifiable evidence of them having issued a Default Notice as stated by them in their Particulars of Claim.'

[charitynjw]

Below link shows some examples of witness statements.
Strictly speaking, a WS is a sort of account of what has occurred leading up to & during the court case, & is not really for legal argument.

However, Small Claims court is a bit more relaxed & tolerant of stuff, so it is a good idea to put things in the WS which may have been missed in your original defence, or need to be altered.

& yes, do post up your draft WS if you would like us to comment.

[tbees72]

Charitynjw may I just say thank you so much for your time & help- really, Thank You.. it is quite amazing that you have given your time to help & the sun is out! Things aren't so bad!! ....

[tbees72]

When they come back at me with their argument- DMP ( last payment made May 2018), correspondence between us etc do I acknowledge that -yes, I have paid them to date but now I know that the claimant does not deserve relief because they failed to do xxx and they have no legal claim to this debt.

[tbees72]

And can I mention as part of my defendant's story their visit to my elderly in-laws house via Fidelite credit debt collectors or does that take things in another direction? I did make a complaint to them at the time.

[charitynjw]

When they come back at me with their argument- DMP ( last payment made May 2018), correspondence between us etc do I acknowledge that -yes, I have paid them to date but now I know that the claimant does not deserve relief because they failed to do xxx and they have no legal claim to this debt.

This would only really be relevant if there was a statute-barred argument involved (no payment/acknowledgement from 6 years after the 14 day period given in the Default Notice.)
Or possibly if there was a dispute over the amounts/frequency of payments

It's likely that payments made via your DMP can be proven by them, & if so there's no point in denying it.

You should shortly be receiving copies of all the documents which they will rely on for the court hearing (usually 14 days before the hearing.
You, likewise, should send (to their solicitor) your documents, again min 14 days before the hearing (so if you post them, allow at least 2 working days for delivery. And get proof of posting.....I would suggest Royal Mail SignedFor, as then you can track delivery.)
The court normally advises you of the relevant dates.....have they (court) sent you a direction notice for this?

[tbees72]

Yes, the court have sent a direction notice for this. The court date is Friday 15th March. I will have to prepare & post by tomorrow afternoon ( working nightshifts this week so foregoing sleep to get it done) but needs must & I want it to be a robust defence so I don't look like a silly person!.. I have been watching too much Judge Rinder!

[charitynjw]

One bit from your Defence, with which we ought to sort out, is the stuff about s136 Law of Property Act 1925, etc. (the Consumer Credit Act section you mention alongside it is much the same thing.)

The way it all works.....

When the original creditor sells the debt on (usually by terminating the agreement), it is usually bought as part of a massive portfolio of other debts (often hundreds/thousands of debts.) They are normally sold on very cheap (pence in the pound.)

For each individual debt, either the original creditor, or the new assignee (buyer), or sometimes both, have to inform the debtor that it has been sold, & the new owner of the debt is now [xxxx company].

So the debtor should receive what is referred to as a notice of assignment.
There is no special format to do this.It can even be part of another written letter/statement, as long as the debtor is made aware of the sale.
All that is needed is that the debtor is informed in writing about the sale, & to whom the debt is now owed.
It doesn't even need to give dates of sale, though, if it does, the dates should be accurate. (for legal reasons which I don't think apply in your case.)
But it's not normally a situation where the debtor can say "The date stated is wrong so the assignment notice is defective/void."

The 2 main points to take from this are
1. The debtor is served notice of the sale of the debt by [X] to [Y].
2 The notice is in writing.

So there you go; s136 Law of Property Act 136 in a nutshell!

[tbees72]

IN THE *********** COUNTY COURT
Claim No. ********


BETWEEN: Claimant
- and -
Defendant
_________________________________

WITNESS STATEMENT OF **********
_________________________________




I ********* of ********** being the Defendant in this case will state as follows;


I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

1. On or around the *********, I received a claims form from the County Court Business Centre, Northampton, for the amount of £*******.

2. There were no details about when the alleged default occurred, the degree of default or details as to how the sums claimed have accrued.
3. The particulars of claim fail to state when the agreement was entered into.

4. The particulars of claim state that this claim is for “an agreement between Tesco Bank and the defendant subject to standard terms and conditions”. I have in the past had financial dealings with Tesco Bank.

5. Paragraph 3 of the particulars of claim is denied as I have never entered into any agreement with the claimant therefore I cannot be in breach of any terms as no signed agreement exists with the claimant.

6. On 12 June 2018 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

7. On 4 July 2018 the Claimants solicitors replied [EXHIBIT B] to my written request without the following requested documents : an accurate copy of the original agreement and a copy of the default notice. The Claimant has mentioned within the Particulars of Claim, the default Notice (ie the Cause of Action and the need for the default notice under Sections 87-89 of the Consumer Credit Act) but the default notice has not been provided nor any documents that may have been serviced upon me in accordance with Section 196 of the Law of Property Act 1925, has yet to be provided despite my entitlement to inspect these documents and my best efforts to obtain them.The Claimant in fact could not have issued a Default notice as they claim to have bought the debt 05.03.2015 and as I recall any breach with the original creditor would have been on or around 2003/2004. The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have already been terminated before assignment . I require the Claimant to provide documented verifiable evidence of them having issued a Default notice as stated by them in their Particulars of Claim.

8. On 15 July 2018 I made a formal written request to the Claimant, requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 77-79 of the Consumer Credit Act 1974 [EXHIBIT C]. It is my understanding that if a formal CCA s78 request is made the Claimant should be able to provide an accurate copy of the agreement, along with a copy of the original terms and conditions & any variations applicable up to the termination date. The claimant has failed to provide this. Section 61(1)(a) CCA 1974 requires that the document signed by the debtor contains all of the prescribed terms when the debtor signs the document. They cannot as a matter of established law be provided later to remedy such a failing. The claimant has provided a copy of a credit application form[EXHIBIT D] which was sent out in a marketing mailshot and the prescribed terms and conditions were not present when I signed this application. As the prescribed terms (including the rates of interest) were not contained within the agreement the pre-April 2007 agreement ought to be held unenforceable by virtue of s127(3) Consumer Credit Act 1974. The original agreement was not executed properly.

9. Therefore I believe the claimant has failed to show how I, the defendant in this case has
a) entered into an agreement with them
b) evidence any nature of breach and show how the service of a Default Notice and Notice of sums in Arrears pursuant to the CCA 1974
c) show how the Claimant has the legal right, either under statute or equity to issue a claim.

Statement of Truth

I, **********, the Defendant, believe the facts stated within this Witness Statement to be true.


Signed: ________________________________

Dated:


Good morning, well that was a fun night - working and writing this at the same time!! hope it is shaping up to look something like a witness statement. Any thoughts feedback greatly appreciated- and once again thank you so much - I would not have got this far without your help

[tbees72]

Hello- just seeing if you can cast your eye over the post above- witness statement- I need to send today preferably to meet the deadline. Many, many thanks

[charitynjw]

IN THE *********** COUNTY COURT
Claim No. ********


BETWEEN: Claimant
- and -
Defendant
_________________________________

WITNESS STATEMENT OF **********
_________________________________




I ********* of ********** being the Defendant in this case will state as follows;


I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

1. On or around the *********, I received a claims form from the County Court Business Centre, Northampton, for the amount of £*******.

**.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

2. There were no details about when the alleged default occurred, the degree of default or details as to how the sums claimed have accrued.

3. The particulars of claim fail to state when the agreement was entered into.

4. The particulars of claim state that this claim is for “an agreement between Tesco Bank and the defendant subject to standard terms and conditions”. I have in the past had financial dealings with Tesco Bank.

5. Paragraph 3 of the particulars of claim is denied as I have never entered into any agreement with the claimant therefore I cannot be in breach of any terms as no signed agreement exists with the claimant.

6. On 12 June 2018 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

7. On 4 July 2018 the Claimants solicitors replied [EXHIBIT B] to my written request without the following requested documents : an accurate copy of the original agreement and a copy of the default notice. The Claimant has mentioned within the Particulars of Claim, the default Notice (ie the Cause of Action and the need for the default notice under Sections 87-89 of the Consumer Credit Act) but the default notice has not been provided nor any documents that may have been serviced upon me.
They have yet to be provided despite my entitlement to inspect these documents and my best efforts to obtain them.

**In accordance with section 136 of the Law of Property Act 1925, The Claimant in fact could not have issued a Default notice as they claim to have bought the debt 05.03.2015 and any breach with the original creditor would have been on or around 2003/2004. The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have already been terminated before assignment . I require the Claimant to provide documented verifiable evidence of them having issued a Default notice as stated by them in their Particulars of Claim.

8. On 15 July 2018 I made a formal written request to the Claimant, requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 77-79 of the Consumer Credit Act 1974 [EXHIBIT C]. It is my understanding that if a formal CCA s78 request is made the Claimant should be able to provide an accurate copy of the agreement, along with a copy of the original terms and conditions & any variations applicable up to the termination date. The claimant has failed to provide this.

**Section 61(1)(a) CCA 1974 requires that the document signed by the debtor contains all of the prescribed terms when the debtor signs the document. They cannot as a matter of established law be provided later to remedy such a failing. The claimant has provided a copy of a credit application form[EXHIBIT D] which was sent out in a marketing mailshot and the prescribed terms and conditions were not present when I signed this application. As the prescribed terms (including the rates of interest) were not contained within the agreement the pre-April 2007 agreement ought to be held irredeemably unenforceable by virtue of s127(3) Consumer Credit Act 1974. The original agreement was not executed properly.

9. Therefore I believe the claimant has failed to show how I, the defendant in this case has
a) entered into an agreement with them
b) failed to evidence any nature of breach.
**Failed to evidence correct service of a Default Notice and Notice of sums in Arrears pursuant to the CCA 1974.
**failed to evidence correct service of a legal assignment via the Law of Property Act 1925.
c) show how the Claimant has the legal right, either under statute or equity to issue a claim.

Statement of Truth

I, **********, the Defendant, believe the facts stated within this Witness Statement to be true.


Signed: ________________________________

Dated:


Good morning, well that was a fun night - working and writing this at the same time!! hope it is shaping up to look something like a witness statement. Any thoughts feedback greatly appreciated- and once again thank you so much - I would not have got this far without your help

No rest for the wicked!
Looking good so far.

I've added/amended some bits for you (s196 LoPA 1925 concerns the method of delivery of the notice of assignment, so not really applicable. It is s136 that you need.)
(Amendments ** and bold)
You'll need to renumber the paragraphs.

I've removed the 'I recall' bit from the LoPa 1925 para.
It might be difficult to explain how you deny entering into an agreement (para 5) & then recall details of it.

When (date) do you have to submit it?

[tbees72]

Wow ! I can't believe I have actually put something together ( with a lot of help!).. Thank you - I will amend in a moment. The court date is Friday 15th March so need to send today or tomorrow ? Too tired to work out the date but nearly there - & my printers packed in...

[tbees72]

Good evening, a quick question - is it worth adding that the claimant said no to mediation or is that something the judge may pick up on? thanks again