CL Finance/Howard Cohens, HELP!

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Well HC haven't responded to my letters now trying to settle the claim.

They didn't supply the correct NOA nor the Default notice or termination notice.

They have supplied a credit agreement that sort of complies (I think), court date is towards the end of Jan.

Do I need to submit a full defence now? I have to supply my documents and so do they at least 14 days before court.

What do I need to do now?
------------------------------- merged -------------------------------
In the judges order or N157 it just says that they should supply supporting documents, it doesn't specify what i asked for in my skeleton argument, should it have?

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Im really not quite sure of the next step...can anyone help?

[Curlyben]

Re: CL Finance/Howard Cohens, HELP!

Give the court a call and see if they have filed anything with them.
I assume you haven't had anything at all that complies with the courts order ??

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

All I had is as above with the credit agreement etc but that was a while ago and not because of the courts order.

The court are sending me out a copy of their N157 notice that was badly messed up by the postman, I asked them yesterday. HC had filled allocation 4 days before me but nothing else yet.

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

In the XXXX County Court
Claim Number: XXXXXX

CL Finance - Claimant

and


XXXXX - Defendant




Defence

1. I XXXXXX of XXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

2. 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.

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 as the Claimant has failed to supply a copy of the written document which forms the basis of this claim.

4. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

5. The Claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer credit act 1974.

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the credit agreement and the Default Notice. Therefore these documents must be produced before the court and must comply with the relevant sections of the Consumer Credit Act and the regulations made under the Act, I will address these requirements later in this defence.

7. Furthermore the Claimant has failed to attach a copy of the Deed of Assignment or the Notice of Assignment which is required to comply with Section 196 of the Law of Property Act 1925 and proof of posting of both documents. I place the Claimant to strict proof that the Notice of Assignment was posted prior to the start of this action. Should the Claimant not be able to produce this proof, I contend that the Claimant would not have a legal right to this action and the case should be struck out without further notice.

8. Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

9. I will now look at the important issues relating to this case which must be brought to the courts attention.


Pre-action protocols

10. The Claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

The Request for Disclosure

11. Further to the case, on 17th September2009 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. This request was delivered by Royal Mail’s recorded delivery service on 18th September 2009. So far the Claimant has supplied the following documents; Credit Agreement and Statement of account. The remaining above documents are still outstanding.
12. The Claimant responded stating that due to the claim not being assigned to the “fast track” that they do not have to provide such information and that the particulars of claim are sufficient to prepare a defence. The Defendant made the request in addition to other requests previous to this action in attempts to gain information regarding the account. Copies of the request made under the Civil Procedure Rules are attached, including the Royal Mail delivery confirmation.

13. To Date the Claimant has ignored my request under the CPR and I have not received all documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

14. The Claimant is therefore put to strict proof that a document which is legible and compliant with the Consumer Credit Act and subsequent regulations made under the Act exists.
15. The Defendant made a request on 21st August 2009 under the Data Protection Act for Subject Access, it included the statutory fee of £10 and was signed for on the 25th August 2009 at Santander Cards (previous owner). A chase up letter was sent to Santander on 18th September 2009 and has been delivered. The request detailed access to all information relating to the said account including histories and the original true signed credit agreement. To date not all the information has been forthcoming and a complaint has been registered with the Information Commissioners Office.



The Credit Agreement


16. The agreement referred to in the Particulars of Claim relates to a credit agreement regulated by the Consumer Credit Act 1974. Under the said Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

17. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

18. 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

19. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. 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

23. With regards to the Authority cited in point 22, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

24. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers.




The Default Notice

25. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a Default Notice before they can demand payment under a regulated credit agreement.

26. 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.

27. Notwithstanding point 25, 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).

28. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.



The Assignment of the debt

29. I require the Claimant produce the Notice of Assignment and the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the Claimant disclose proof of posting per s196 LoP Act 1925.

30. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly.

31. If no Deed of Assignment can be produced it is requested that the court strike out the Claimants’ case as the Claimant will not have a right to bring this action against me in their name. Claimant said that this is a complex document and because of the value of the claim it isn’t required.

Conclusion

32. I respectfully ask the court to use its case management powers to order the Claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

33. I further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.

34. In addition, if the Claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by Debtor and Creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the Claimants case accordingly. They have now produced credit agreement, not sure if its valid though.

35. Alternatively, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 12 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.

36. 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 under the Consumer Credit Act 1974 which is the relevant act in this case.



Statement of Truth

This is what I propose to send as my defence, is that ok?

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Ok URGENT HELP needed now really confused.

DJ X has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

The hearing of the claim will take place at .....on 28th Jan.

A hearing fee of £50 is payable by the claimant by ......

The court must be informed immediately if the case is settled by agreement before the hearing date.

Each party shall deliver to every other party and to the court office copies of all documents (including any experts report) on which he intends to rely at the hearing no later than 14 days before the hearing.

The original documents shall be brought to the hearing.

Witness statements to be file 7 days before the hearing.

Just to note, nothing from HC apart from letter today offering me settlement of £250 instead of the previously agreed £200 because they have now had to pay a hearing fee.

Obviously I don't have much time to get all my documents together but plan on working tonight fully on them all.

I have my ammended defence ready but is this now too late to put in? Also I understand I have to pay a fee, is that right?

[Curlyben]

Re: CL Finance/Howard Cohens, HELP!

No worries there.
The fee is payable by THEM.

The real kicker here, for Cohens anyway, is this part: The original documents shall be brought to the hearing.

He'll have fun with that

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Ok, my issue is I haven't done any documents.

I have my ammended defence ready but haven't sent it in yet and thought it was too late to do another defence.

What other documents do I need to get ready and send to them and the court?

Also I haven't had anything else from them yet so they are cutting it quite fine!

[Curlyben]

Re: CL Finance/Howard Cohens, HELP!

All you really need to deliver are the communications between you and your further defence, but change it to be a witness statement..

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Oh right ok so I will just send in the correspondance between each, they have sent me letters marked without prejudice but not the most recent, can I still use them to send in?

Would it be good to page number them or use dates as ref?

[Curlyben]

Re: CL Finance/Howard Cohens, HELP!

Yep.
You can use anything that isn't mark without P.
You are trying to show their abuse of process here, so you need to adjust the defence to be a witness statement showing what has happened in order referencing the letters etc..

Does that all make sense ?

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Sort of, I need to remove the word "Defence" and replace it with this is a witness statement etc. My witness statement is posted above.

I will need to add in there then about the correspondance etc. Is there anything else I need to do?

[Curlyben]

Re: CL Finance/Howard Cohens, HELP!

make 3 copies and put them in a nice folder with an index.
1 copy for them
1 for the judge
and 1 for you.

Post up the WS and we'll tweak it..

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

& I need the originals?

Ok. I will get on to that now. Hopefully it should be ok.

[orfoster]

Re: CL Finance/Howard Cohens, HELP!

Witness statement is below....

In the County Court
Claim Number:

CL Finance - Claimant

and


- Defendant




Witness Statement

1. I am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

2. Except where otherwise mentioned in this statement, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 as the Claimant has failed to supply the original written document which forms the basis of this claim.

4. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

5. The Claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer credit act 1974.

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the credit agreement and the Default Notice. Therefore these documents must be produced before the court and must comply with the relevant sections of the Consumer Credit Act and the regulations made under the Act, I will address these requirements later in this statement.

7. Furthermore the Claimant has failed to attach a copy of the Deed of Assignment or the Notice of Assignment which is required to comply with Section 136 and Section 196 of the Law of Property Act which provides that service must be effected by registered post. It is accepted that for a Notice of Assignment to be valid it need not contain the date of an assignment or indeed the amount of any debt. However if those matters are contained in an assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co LTD v Burke 1956 [2] All ER 169).It is further submitted that, in any event, the Defendant is entitled to, as a matter of law, be provided with a copy of the alleged Assignment (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824). I place the Claimant to strict proof that the Notice of Assignment was posted prior to the start of this action. Should the Claimant not be able to produce this proof, I contend that the Claimant would not have a legal right to this action and the case should be struck out without further notice. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Deed of Assignment to the Defendant. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

8. Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

9. I will now look at the important issues relating to this case which must be brought to the courts attention.


Pre-action protocols

10. The Claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

The Request for Disclosure

11. Further to the case, on 17th September2009 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. This request was delivered by Royal Mail’s recorded delivery service on 18th September 2009. So far the Claimant has supplied the following documents; Credit Agreement and Statement of account. The remaining above documents are still outstanding.
12. The Claimant responded stating that due to the claim not being assigned to the “fast track” that they do not have to provide such information and that the particulars of claim are sufficient to prepare a defence. The Defendant made the request in addition to other requests previous to this action in attempts to gain information regarding the account. Copies of the request made under the Civil Procedure Rules are attached, including the Royal Mail delivery confirmation.

13. To Date the Claimant has ignored my request under the CPR and I have not received all documentation requested. As a result it has proven difficult to compose this statement without disclosure of the information requested, especially given that I am Litigant in Person.

14. The Claimant is therefore put to strict proof that a document which is legible and compliant with the Consumer Credit Act and subsequent regulations made under the Act exists.
15. The Defendant made a request on 21st August 2009 under the Data Protection Act for Subject Access, it included the statutory fee of £10 and was signed for on the 25th August 2009 at Santander Cards (previous owner). A chase up letter was sent to Santander on 18th September 2009 and has been delivered. The request detailed access to all information relating to the said account including histories and the original true signed credit agreement. To date not all the information has been forthcoming and a complaint has been registered with the Information Commissioners Office.



The Credit Agreement


16. The agreement referred to in the Particulars of Claim relates to a credit agreement regulated by the Consumer Credit Act 1974. Under the said Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

17. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

18. 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

19. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. 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

23. With regards to the Authority cited in point 22, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

24. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers.




The Default Notice

25. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a Default Notice before they can demand payment under a regulated credit agreement.

26. 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.

27. Notwithstanding point 25, 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).

28. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.





The Assignment of the debt

29. I require the Claimant produce the Notice of Assignment and the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the Claimant disclose proof of posting per s196 LoP Act 1925.

30. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly.

31. If no Deed of Assignment can be produced it is requested that the court strike out the Claimants’ case as the Claimant will not have a right to bring this action against me in their name.

Conclusion

32. I respectfully ask the court to use its case management powers to order the Claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

33. I further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.

34. In addition, if the Claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by Debtor and Creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the Claimants case accordingly.

35. 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 under the Consumer Credit Act 1974 which is the relevant act in this case.



Statement of Truth


I believe the above statement to be true and factual


Signed .....................

Date 6th October 2009.

Should I mention the payplan payment arrangement i am in and that there has been consistant payments throughout?