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N9B defence for inaccurate CCA

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  • MIKE770
    replied
    true copy of the original pre 2007

    Leave a comment:


  • echat11
    replied
    Originally posted by Dolally1 View Post
    Thank you.

    c) In 2018 Next sent a contract with no address, then a couple of months later sent it again with my current address (not the one at the alleged time of opening). Restonís have sent two, both with the same previous address but as above not the correct address at time of alleged opening. Restonís have admitted in their covering letter that this is a reconstituted copy of the original as allowed by Carey vs HSBC bank 2009 and itís the only copy their client holds. So for an account as older than 2007 are they not allowed to reconstitute an agreement?
    They need to provide a true copy of the agreement at the time. They can't 'guess' what they think the address might of been. I'd be tempted to say that you previously held a account with Next. They can't provide a true copy or a 'reconstructed' agreement if that is what they should provide.

    Leave a comment:


  • Dolally1
    replied
    Thank you.

    c) In 2018 Next sent a contract with no address, then a couple of months later sent it again with my current address (not the one at the alleged time of opening). Restonís have sent two, both with the same previous address but as above not the correct address at time of alleged opening. Restonís have admitted in their covering letter that this is a reconstituted copy of the original as allowed by Carey vs HSBC bank 2009 and itís the only copy their client holds. So for an account as older than 2007 are they not allowed to reconstitute an agreement?

    Leave a comment:


  • echat11
    replied
    Don't do anything with this yet.

    a) So you had an account with Next, but don't believe this is the account because of the incorrect address?, so it could belong to someone else. So I believe you need to deny it, because the information does not correspond. But I need to get that checked with an expert, so we know it's the correct way to proceed. Celestine

    b) Leave out statute barred.

    c) Lets say for example it is your account, they would have to provide a true copy of your original agreement because it was before 2007. That could be why they've sent one with an incorrect address (they've reconstructed it), what does the other one say regards the address?

    Read through it to make sure it's correct.


    DEFENCE

    1.The Defendant received the claim XXXXXXXXXX from the Northampton County Court on 20th April 2022.

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

    3.This claim appears to be for a Catalogue Account agreement regulated under the Consumer Credit Act 1974.

    4.It is denied that the Defendant has entered into an agreement with Next for provision of credit.

    5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

    6.The Claimant's Particulars of Claim states the agreement was entered into on or about Aug 2001.

    7.The Claimants statement of case states that the account was assigned from Next to Debt Managers (services) Ltd on 20 Dec 2019. The Defendant does not recall receiving notice of this assignment.

    8.It is denied that Next served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

    9.On the 22nd April 2022 The Defendant sent a request for inspection of documents mentioned in the claimantís statement of case under Civil Procedure Rule 31.14 to Restons Solicitor Ltd. I requested the Claimant provide copies of the Agreement and Notice of Assignment.

    10.Restons Solicitors has not sent any of these documents to the Defendant under the Civil Procedures Rules.

    11.On XXXXXXXX The Defendant sent a formal request for a copy of the original agreement to Debt Managers (Services) Ltd pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

    12.The Claimant has failed to comply with s 78 Consumer Credit Act 1974 and by virtue of s 78 Consumer Credit Act 1974 cannot enforce the agreement.

    13.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

    14.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

    15.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

    16.It is denied that the Claimant is entitled to the relief as claimed or at all.

    Statement of Truth

    I believe the facts stated in this Defence are true. I understand] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

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  • Dolally1
    replied
    Ok so not as straight forward as I thought but here goes.....

    DEFENCE

    1.The Defendant received the claim [Claim Number] from the Northampton County Court on 20th April 2022.

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

    3.This claim appears to be for Catalogue Account agreement regulated under the Consumer Credit Act 1974.

    4.It is [admitted/denied Ė NOT SURE WHAT TO ENTER HERE, I DID HAVE AN ACCOUNT BUT THE ADDRESS DETAILS AND AMOUNTS DONT MATCH WITH WHAT I HAD - HOW DO I GENUINELY KNOW IF THIS IS MINE? Only deny opening the account if you genuinely believe you did not open the account, otherwise admit.] that the Defendant has [previously] entered into [an agreement/agreement] with [Original Creditor /Claimant] for provision of credit.

    5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

    6.The Claimantís Particulars of Claim states the agreement was entered into on or about Aug 2001.

    Ive deleted item 7 as not SB so amended numbers onwards, hope thatís right

    7.The Claimants statement of case states that the account was assigned from Next to Debt Managers (services) Ltd on 20 Dec 2019. The Defendant does not recall receiving notice of this assignment.

    8.It is denied that Next served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

    9.On the 22nd April 2022 The Defendant sent a request for inspection of documents mentioned in the claimantís statement of case under Civil Procedure Rule 31.14 to Restons Solicitor Ltd. I requested the Claimant provide copies of the Contract and Notice of Assignment.

    10.Restons Solicitors has not sent any of these documents to the Defendant. - ďcontractĒ previously sent on request but nothing sent this time - does this matter?

    11.On the The Defendant sent a formal request for a copy of the original agreement to [Claimant] pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee. - Previously requested of Next in 2018, then Restons in response to letter before claim x 2 - and different docs received from both parties - do I list that here


    What about the SARS request does that get mentioned here?

    12.The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.

    13. The Defendant have asked the Claimant if we may agree to extend the time period allowed for filing of the defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.

    14.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

    15.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

    16.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

    17.It is denied that the Claimant is entitled to the relief as claimed or at all.

    Statement of Truth

    [I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

    Leave a comment:


  • echat11
    replied
    Originally posted by Dolally1 View Post
    Iíve received replies now to the SARS and CPR letter.

    SARS was a simple we will get back to you in 30 days but CPR response wasnít quite so simple -

    Ēwe would point out that the claim was issued by the County Court business centre which is a procedure specifically provided for in the CPR. This procedure only allows the claimant to insert brief details of the claim and does not allow for any attachment of any enclosure. Paragraph 5.2A of practice Direction 7E specifically states ďthe requirement in paragraph 7.3 of practice direction 16 for documents to be attached to the particulars of contract claim does not apply to claims started using an online claim form, unless the particulars of the claim are served separately in accordance with paragraph 5.2 of this practice direction.Ē

    We would also remind you that cpr 31.14 states - a party May inspect a document mentioned in -
    a) statement of case
    b) witness statement c) witness summary
    d) an affidavit

    You will have been provided a copy of the contract/terms and conditions at the time the account was opened and hence we so no reason why you now require an additional copy.

    Further more the other documents you requested were not mentioned in the particulars of claim - (EXCEPT THEY WERE!)

    Furthermore throughout the account you will have received various notices and collection style letter and therefore we do not believe there can be any sensible basis for you to allege that you donít understand the basis of the claim issued against you.

    For the avoidance of doubt, no extension of time is agreed for you to file a defence. ď

    So in summary it appears they wonít be providing anymore documentation. I guess I can start filling in my defence now?

    Well, the CPR thing is a bit of a 'riddle', maybe they are wanting to audition for the next Batman movie.

    They are answering questions that haven't been asked, but not answering questions that have been asked.

    Exactly right, start working on your Defence, post it up removing all personal details.

    Leave a comment:


  • Dolally1
    replied
    Iíve received replies now to the SARS and CPR letter.

    SARS was a simple we will get back to you in 30 days but CPR response wasnít quite so simple -

    Ēwe would point out that the claim was issued by the County Court business centre which is a procedure specifically provided for in the CPR. This procedure only allows the claimant to insert brief details of the claim and does not allow for any attachment of any enclosure. Paragraph 5.2A of practice Direction 7E specifically states ďthe requirement in paragraph 7.3 of practice direction 16 for documents to be attached to the particulars of contract claim does not apply to claims started using an online claim form, unless the particulars of the claim are served separately in accordance with paragraph 5.2 of this practice direction.Ē

    We would also remind you that cpr 31.14 states - a party May inspect a document mentioned in -
    a) statement of case
    b) witness statement c) witness summary
    d) an affidavit

    You will have been provided a copy of the contract/terms and conditions at the time the account was opened and hence we so no reason why you now require an additional copy.

    Further more the other documents you requested were not mentioned in the particulars of claim - (EXCEPT THEY WERE!)

    Furthermore throughout the account you will have received various notices and collection style letter and therefore we do not believe there can be any sensible basis for you to allege that you donít understand the basis of the claim issued against you.

    For the avoidance of doubt, no extension of time is agreed for you to file a defence. ď

    So in summary it appears they wonít be providing anymore documentation. I guess I can start filling in my defence now?


    Leave a comment:


  • echat11
    replied
    Make sure you get your defence in on time, so 28 days from the date of the claim letter, note it in your diary.


    This is an example defence, that needs to be amended (amended carefully) to take account of events at this moment in time.

    https://legalbeagles.info/library/gu...-court-claims/

    Once you done it, post it up without personal details, obviously wait to see what further documents they send, then I can have a look at it.

    A copy is sent to the Court and a copy sent to the creditors solicitors, make sure you get Proof of Postage.

    Leave a comment:


  • Dolally1
    replied
    You can check on MCOL history, that should show your acknowledgement. - ah yes thank you, shows online

    When did you make the last payment? (is that why it's not statute barred?) - 2018

    Because the account was opened pre 2007, they should provide a copy of the original agreement. I think what you may have (what they have sent) is a 'reconstituted agreement', so basically they have made it up from the details they have at hand. Have you got evidence of your address at the time (2001)? - yes mortgage statement, house deeds, payslips etc

    thank you so much for taking the time to help with this.

    Leave a comment:


  • echat11
    replied
    Originally posted by Dolally1 View Post
    info as requested -

    Received a claim? Yes/
    Issue Date: 8April
    Have you Acknowledged the Claim?: yes online but no confirmation email received?! Not sure if I should be worried
    Total Amount Claimed : 3500
    Claimantís Name: Debt mngs
    Solicitors Firm: Restons
    Original Creditor: Next
    Original Debt (eg. Credit card/Loan/Overdraft) : catalogue online
    Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ): claimant claims payment of the overdue balance from defendant under contract between defendant and next dated on or about Aug 14 2001 and assigned to the claimant Dec 20 2019. Notice of assignment has been given to the defendant
    Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): not SB, no contact other than 2x response forms to letter before claim request box c & D ticked and SARs request feb 2021
    List any letters you have sent (eg: CCA/ CPR ): CCA sent 2018 and SARS feb 2021. 2 x CCA received feb 18 & March 22 both with different personal details
    Any Other Information or Background Details:
    You can check on MCOL history, that should show your acknowledgement.

    When did you make the last payment? (is that why it's not statute barred?)

    Because the account was opened pre 2007, they should provide a copy of the original agreement. I think what you may have (what they have sent) is a 'reconstituted agreement', so basically they have made it up from the details they have at hand. Have you got evidence of your address at the time (2001)?

    Leave a comment:


  • Dolally1
    replied
    info as requested -

    Received a claim? Yes/
    Issue Date: 8April
    Have you Acknowledged the Claim?: yes online but no confirmation email received?! Not sure if I should be worried
    Total Amount Claimed : 3500
    Claimantís Name: Debt mngs
    Solicitors Firm: Restons
    Original Creditor: Next
    Original Debt (eg. Credit card/Loan/Overdraft) : catalogue online
    Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ): claimant claims payment of the overdue balance from defendant under contract between defendant and next dated on or about Aug 14 2001 and assigned to the claimant Dec 20 2019. Notice of assignment has been given to the defendant
    Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): not SB, no contact other than 2x response forms to letter before claim request box c & D ticked and SARs request feb 2021
    List any letters you have sent (eg: CCA/ CPR ): CCA sent 2018 and SARS feb 2021. 2 x CCA received feb 18 & March 22 both with different personal details
    Any Other Information or Background Details:

    Leave a comment:


  • echat11
    replied
    a) Will do c/d today however am running short of time thanks to the claim arriving 2 days after I left home to go away for 10 days, typical! So not sure (even with the 28+5) that there will be time for Restonís to reply. I have the contract and letter of assignment from their previous letter before claim.

    Good, send off the CPR and SAR letters. The important thing is to get them sent off. You might not get the information back in time, but you can put that in your defence. You haven't received the a copy of the Default Notice.

    b) So looking through the defence link youíve attached at this stage despite the court form asking for as much detail as possible Iím only stating itís that I donít have documentation to defend. It will then go to a hearing and at that point i state I think itís unenforceable due to x ? Have I understood that correctly?

    You haven't received all the documentation i.e. default notice etc (you've been asked to fill in the form in post 2, you still haven't done that, so I don't even know what documents you should be requesting under the CPR)

    You file your defence, then you will be sent a Directions Questionnaire, you will then have the opportunity for 'mediation' if both parties agree.


    Leave a comment:


  • Dolally1
    replied
    Ok thanks.

    Will do c/d today however am running short of time thanks to the claim arriving 2 days after I left home to go away for 10 days, typical! So not sure (even with the 28+5) that there will be time for Restonís to reply. I have the contract and letter of assignment from their previous letter before claim.

    So looking through the defence link youíve attached at this stage despite the court form asking for as much detail as possible Iím only stating itís that I donít have documentation to defend. It will then go to a hearing and at that point i state I think itís unenforceable due to x ? Have I understood that correctly?

    Not statute barred (12 months to go)

    Leave a comment:


  • echat11
    replied
    Originally posted by Dolally1 View Post
    Thank you for your response.

    yes I have received a court claim form and I have acknowledged it. I have already requested CCA and had the documents returned to me. However my argument is that itís not a true copy as the address is incorrect. If the address is incorrect to the alleged opening date of the account how can I be sure the rest is correct.

    Do I simply state this on the N9b form?

    amount is £3500

    Any help gratefully appreciated

    a) yes I have received a court claim form and I have acknowledged it.

    Good.

    b) I have already requested CCA and had the documents returned to me.

    Good, you need to check other things in the Agreement / Terms and Conditions.

    c) However my argument is that itís not a true copy as the address is incorrect. If the address is incorrect to the alleged opening date of the account how can I be sure the rest is correct.

    Clearly it should have the correct address, but check to see if the agreement has been varied, i.e. has the APR changed from opening / closing of the account, etc.

    d) Do I simply state this on the N9b form?

    No, your defence should only deal with the Particulars of Claim.

    e) You also need to do c / d as stated in post 2.


    Also you haven't provided the information requested in post 2.

    Leave a comment:


  • Dolally1
    replied
    Thank you for your response.

    yes I have received a court claim form and I have acknowledged it. I have already requested CCA and had the documents returned to me. However my argument is that itís not a true copy as the address is incorrect. If the address is incorrect to the alleged opening date of the account how can I be sure the rest is correct.

    Do I simply state this on the N9b form?

    amount is £3500

    Any help gratefully appreciated

    Leave a comment:

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