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Re: Urgent Advice needed for court case please
Ok ran this up for you (please remember im not a lawyer or qualified in anyway) and it almost certainly needs some tweaking as im not "upto speed" with the CCA SI's post 2004.
DEFENCE
of the Defendant, NS7589, Date of Birth x, Litigant in person
1. The Defendant believes that this action is both vexatious and an abuse of the courts process with regard that the Claimant has not provided any new evidence upon which to pursue this claim.
2. The Claimant is put to proof of all facts on which it relies in support of its claim. In particular, the Claimant is required to prove that the Credit Agreement was executed in accordance with the provisions of the Consumer Credit Act 1974 (the CCA 1974) and the Consumer Credit (Agreements) Regulations 1983 and 2004??
3. The Defendant has been in a Debt Management Plan (DMP) since X and has made monthly payments to all creditors, including Nationwide, in line with this. Nationwide has at no time formally accepted the DMP but has received and banked the monthly token payments.
4. The Defendant’s case for the denial of the lifting of the stay of proceedings is as follows: -
a. The Claimant has at no time during the commencement of these proceedings provided the Defendant with a true, signed, copy of the unexecuted Credit Agreement when the unexecuted Credit Agreement was sent to the Defendant for his signature, in breach of section 62(2) of the CCA 1974.
b. The Claimant has at no time provided the Defendant with a true, signed, copy of the executed Credit Agreement and any other document referred to in it within 7 days following the making of the Credit Agreement (or at all, until during the course of these proceedings), in breach of section 63(2) of the CCA 1974.
c. In the circumstances, the Credit Agreement was improperly-executed and is irredeemably unenforceable against the Defendant pursuant to section 127(3) of the CCA 1974.
5. Further, the Claimant did not serve a correct Default Notice pursuant to section 87 of the CCA 1974. The Default Notices dated X & X, failed to contain the prescribed terms as laid down in statute, in breach of section 88 of the CCA 1974.
6. The Claimant did by virtue of the letter of the 17/11/2009, from Drydens Lawyers acting as their duly authorised representative, categorically Terminate the Agreement. Whether or not the Claimant was entitled to do so it represents, as a minimum, a Negligent Breach of Contract and subsequently the Unlawful Rescission of Contract was accepted in writing by the Defendant on the X.
7. The Claimant is now relying upon the Ruling of His Honourable Judge Waksman QC in the Manchester Test Cases. It is the Defendants position that the Claimant is misrepresenting the ruling that provides for the Reconstitution of the Agreement under a Section 78 request by a debtor to satisfy the burden of proof as required under the Civil Evidence Rules.
8. The Claimant issued a new Default Notice on X/08/2010 but as the Agreement had already been Terminated on the 17/11/2009 this new notice is based upon the erroneous assumption that the contract endured.
9. Under the Circumstances the Defendant does not believe the Claimant has any real prospect of successfully pursuing this claim.
10. The Defendant respectfully requests that summary judgement be made that as a result of the Claimants inability to provide a true, signed copy, of the Agreement that the Court rules that the debt is irredeemably unenforceable pursuant to section 127(3) of the CCA 1974.
11. Notwithstanding the above pleaded points that the Court deny permission to lift the stay.
I confirm that the contents of this statement of case are true.
Signed:
Re post 44 - I agree and you could insert that between points 10 and 11 something along those lines.
Ok ran this up for you (please remember im not a lawyer or qualified in anyway) and it almost certainly needs some tweaking as im not "upto speed" with the CCA SI's post 2004.
Claim Number – xx
IN THE xx COUNTY COURT
Filed on Behalf of Defendant
Exhibits: x
Between
Nationwide– (Claimant)
And
Mr NS7589– (Defendant)
Between
Nationwide– (Claimant)
And
Mr NS7589– (Defendant)
of the Defendant, NS7589, Date of Birth x, Litigant in person
1. The Defendant believes that this action is both vexatious and an abuse of the courts process with regard that the Claimant has not provided any new evidence upon which to pursue this claim.
2. The Claimant is put to proof of all facts on which it relies in support of its claim. In particular, the Claimant is required to prove that the Credit Agreement was executed in accordance with the provisions of the Consumer Credit Act 1974 (the CCA 1974) and the Consumer Credit (Agreements) Regulations 1983 and 2004??
3. The Defendant has been in a Debt Management Plan (DMP) since X and has made monthly payments to all creditors, including Nationwide, in line with this. Nationwide has at no time formally accepted the DMP but has received and banked the monthly token payments.
4. The Defendant’s case for the denial of the lifting of the stay of proceedings is as follows: -
a. The Claimant has at no time during the commencement of these proceedings provided the Defendant with a true, signed, copy of the unexecuted Credit Agreement when the unexecuted Credit Agreement was sent to the Defendant for his signature, in breach of section 62(2) of the CCA 1974.
b. The Claimant has at no time provided the Defendant with a true, signed, copy of the executed Credit Agreement and any other document referred to in it within 7 days following the making of the Credit Agreement (or at all, until during the course of these proceedings), in breach of section 63(2) of the CCA 1974.
c. In the circumstances, the Credit Agreement was improperly-executed and is irredeemably unenforceable against the Defendant pursuant to section 127(3) of the CCA 1974.
5. Further, the Claimant did not serve a correct Default Notice pursuant to section 87 of the CCA 1974. The Default Notices dated X & X, failed to contain the prescribed terms as laid down in statute, in breach of section 88 of the CCA 1974.
6. The Claimant did by virtue of the letter of the 17/11/2009, from Drydens Lawyers acting as their duly authorised representative, categorically Terminate the Agreement. Whether or not the Claimant was entitled to do so it represents, as a minimum, a Negligent Breach of Contract and subsequently the Unlawful Rescission of Contract was accepted in writing by the Defendant on the X.
7. The Claimant is now relying upon the Ruling of His Honourable Judge Waksman QC in the Manchester Test Cases. It is the Defendants position that the Claimant is misrepresenting the ruling that provides for the Reconstitution of the Agreement under a Section 78 request by a debtor to satisfy the burden of proof as required under the Civil Evidence Rules.
8. The Claimant issued a new Default Notice on X/08/2010 but as the Agreement had already been Terminated on the 17/11/2009 this new notice is based upon the erroneous assumption that the contract endured.
9. Under the Circumstances the Defendant does not believe the Claimant has any real prospect of successfully pursuing this claim.
10. The Defendant respectfully requests that summary judgement be made that as a result of the Claimants inability to provide a true, signed copy, of the Agreement that the Court rules that the debt is irredeemably unenforceable pursuant to section 127(3) of the CCA 1974.
11. Notwithstanding the above pleaded points that the Court deny permission to lift the stay.
Statement of Truth
Signed:
Comment