Failed to send document’s after CPR 31-14

[Guest]

Re: Failed to send document’s after CPR 31-14

Hi
Sorry if you think I am messing you about.
But looked on Equifax and thats were I got this info from.
Start date 1979
Last Payment Aug 2006
I do know that I signed for something as at the time you had to have the bank mangers
approval and think it was for a gold card.
But to be honest a lot of waters gone under the bridge and I really don't know.
Regards Denn

Its OK

The reason i ask is because, if this is a regulated agreement then you would have recieved a copy of the executed agreement with your replacement cards as they were renewed under section 85.

Was this a business account card? or was it attached to a current account?

Either way i do not think that section78 would apply unless you signed a subsequent agreement.

Was ther a default notice issued prior to proceedings?

Peter

Peter

[teaboy2]

Re: Failed to send document’s after CPR 31-14

Some valid points raised by peter in the post above, if you can answer them Dennis it would be useful.

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Hi Peter
Will try and answer your question.
As far as I can remember I have never seen any other agreement except the one I signed in the bank mangers office.

It was used for business and personal. And was in my name so I guess it was attached to a current account as I was a sole trader at the time.

I never received a default notice but it could have gone to an old address.

Thanks for your help and sorry if am a bit vague but it was a long time ago.
Denn

[teaboy2]

Re: Failed to send document’s after CPR 31-14

Well even though you were a sole trader, i would assume the card would have had the terms associated with a business credit card rather than a person credit card.

Though the lack of a default notice is helpful, but it would boil down to whether they can proof the default was served, and we would need a copy to make sure if it is valid in terms of perscribed form and allowing a full 14 days to rememdy after 2 working days postage (or 4 if sent second class post which a lot tend to do).

Though as you have not received any new agreement since the original one you signed, then i very much doubt the agreement can be enforced either. Unless they provide evidence that proves a new agreement was issued and received by you.

Though as they have not complied with your CPR34.14 request, then we have no idea what documents they currently have. So the embarrassed defence route in my opinion is the best course of action, unless they were to suddenly spring the documents on you at the last minute prior to you issue your defense.

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Hi
Thanks for that.
Am going to put a defence together on the lines as suggested.
Will post on here for the forums views as do not wish to make a silly mistake after all your help.
Regards Denn

[Guest]

Re: Failed to send document’s after CPR 31-14

Hi
Yes as tea boy says the embarrassed defence is the way to go. I do not think that this agreement will turn out to be regulated under the act so the DN issue will not be a factor as far as enforcement is concerned.
However they should have course given you all information prior to taking proceedings. I am a little confused by the pre action directions they mention. They refer to actions that are not subject to the CPRs, ie under 5K, unless I have it wrong. Do you have any correspondence at all from them that we could see?
Peter

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

The only letter I have is the reply to my CPR 31/14 request.
Here it is:

Having taken counsel's advice on the issues you raise, we respond as follows.

This claim was issued inline by the Claims Production Centre and accordingly paragraph 7.3 of the Practice Direction to CPR Part 16 does not apply to it.
This claim is likely to be allocated to the small claims track. As you are aware CPR Part 31 does not apply to small claims. In our view it would be illogical and contrary to the overriding objective for CPR Part 31 to apply between issue and allocation to the small claims track.

The claiment is an assignee of the debt. It is not the original creditor. The claimant does not ,at present, have in it's possession the original contract documentation.

At present the copy documentation falling within the scope of your request which the claimant can provide to you is limited to the following:
1 Credit Agreement.
2 Statement of the Account.

We can assure you that the claiment will comply with all directions given by the court in due course for the provision of copy documents. In so far as the documents are not yet in the Claimant's possession, the claiment will be taking approprate steps to obtain copies.

The fact that we cannot at the present provide copies of the documentation you have requested, does not provide an excuse to delay your respone to the claim, nor does it justify applying to have the claim struck out. A defendant who genuinley could not respond to a claim without copies of particular would need to explain his reasons in detail. In an appropriate case, he could apply to the court to direct that copies be provided.

You have not set out any satisfactory reason in your letter. The particlars set out in the claim form in this case provide you with sufficent information to respond to the claim. If you fail to do so within the time provided by the CPR, the claimant reserves the right to enter judgment in default without further notice

The letter came on 2 sheets of paper but the second page is the same as the last 3 paragraphs of the first page but in bigger font.
Also the letter came from the claiment and not there Solicitors.

Denn

[Guest]

Re: Failed to send document’s after CPR 31-14

The only letter I have is the reply to my CPR 31/14 request.
Here it is:

Having taken counsel's advice on the issues you raise, we respond as follows.

This claim was issued inline by the Claims Production Centre and accordingly paragraph 7.3 of the Practice Direction to CPR Part 16 does not apply to it.
This claim is likely to be allocated to the small claims track. As you are aware CPR Part 31 does not apply to small claims. In our view it would be illogical and contrary to the overriding objective for CPR Part 31 to apply between issue and allocation to the small claims track.

The claiment is an assignee of the debt. It is not the original creditor. The claimant does not ,at present, have in it's possession the original contract documentation.

At present the copy documentation falling within the scope of your request which the claimant can provide to you is limited to the following:
1 Credit Agreement.
2 Statement of the Account.

We can assure you that the claiment will comply with all directions given by the court in due course for the provision of copy documents. In so far as the documents are not yet in the Claimant's possession, the claiment will be taking approprate steps to obtain copies.

The fact that we cannot at the present provide copies of the documentation you have requested, does not provide an excuse to delay your respone to the claim, nor does it justify applying to have the claim struck out. A defendant who genuinley could not respond to a claim without copies of particular would need to explain his reasons in detail. In an appropriate case, he could apply to the court to direct that copies be provided.

You have not set out any satisfactory reason in your letter. The particlars set out in the claim form in this case provide you with sufficent information to respond to the claim. If you fail to do so within the time provided by the CPR, the claimant reserves the right to enter judgment in default without further notice

The letter came on 2 sheets of paper but the second page is the same as the last 3 paragraphs of the first page but in bigger font.
Also the letter came from the claiment and not there Solicitors.

Denn

They are trying it on, make sure you file that defense.

Peter

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Thanks Peter will do

[teaboy2]

Re: Failed to send document’s after CPR 31-14

I agree with peter, they are certainly trying it on, and its not the first time i have heard that response either. Seems like the practice is spreading inregards to using such response.

Anyway get the embarressed defense in as last time i heard that response, the defendant used the same embarressed defense and it worked out well for the defendant from what i can remember.

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Thanks Teaboy 2
Will get my defense ready and post it up here for you guys to have a look at if thats OK.

Rgards Denn

[teaboy2]

Re: Failed to send document’s after CPR 31-14

Thanks Teaboy 2
Will get my defense ready and post it up here for you guys to have a look at if thats OK.

Rgards Denn

No problem, will look at it when you post it up.

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Hi Teaboy 2
Will you have a look at this please and tell me what you think

Claim number xxxx

Between

xxxxxxxxxxx- Claimant

and

xxxxxxxx - Defendant

DEFENCE

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. Further, no documents supporting the claim in the particulars have been offered. I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

2) It is Not admitted that I signed any agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

3) It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

4) I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

5) Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.


6) "On xxxxxxxx the defendant posted a request for a copy of the consumer credit agreement under the consumer credit act 1974 section 77/78, along with the statutory £1 fee in which the claiment had 14 days upon receipt of the the defendants request to supply the defendant with a copy of the alleged agreement. The claiment failed to supply the agreement within the perscribed timescale and still have not supplied the agreement, and as such are in default of the defendants request. Which would prohibit any such legal action/enforcement as per section 78 (6) "If the creditor under an agreement fails to comply with subsection (1)—(a) he is not entitled, while the default continues, to enforce the agreement" And likewise under section 77 (s.s 4 (A)) of the consumer credit act 1974."

7) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

8) In view of the above, it is denied that I am indebted to the Claimant as alleged or at all.


Statement of Truth
I believe that the facts stated in this defence are true.
Signedxxxxxxx


Defendant

I have put in about the section 77/78 but don't know if this should be in. Have sent one but am unsure with regard to the time line
(12 days plus 2)are these working days? If these are working days then it only gives me 2 days to put my defence in.
Regards Denn

[teaboy2]

Re: Failed to send document’s after CPR 31-14

I must admit, if it was me, i would have stuck with the embarressed defence i provided in an arlier post and simply added the above to it.

1. I, XXX am the Defendant in this action and make the following statement as my defence to the claim made by Varde Investments Ltd. - Change name of claiment to the claiment making the claim against you

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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

4. The Claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:
A copy of the purported written contracts that the Claimant cited in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim.

5. On (Enter date you posted the cpr31-14 request) the Defendant submitted requests under CPR rules via First Class Recorded Delivery for copies of the agreements, copies of all statements since inception of the accounts, in order to assess if the sum claimed is accurate and any other documentation that the Claimant is relying upon in pursuit of this claim. The claimant refused to comply with such request.

6) In the claiments response to the defendants CPR request see letter dated (enter date of their response), the claiment admittted to not having in it's possession the original contract documentation. Yet then went on to state "At present the copy documentation falling within the scope of your request which the claimant can provide to you is limited to the following: 1 Credit Agreement. 2 Statement of the Account." One would therefore assume that they do not have a credit agreement complete with original terms and conditions, making such agreement unenforecable. As such it is clear they have issued the claim without the necessary evidence or supporting documents that their claim relies on. Therefore the claiment is to strict proof that the credit agreement they have is that of the original, and not reconstituted, and that it embodies all the terms and conditions (other than implied terms) and that it compiles with section 60 and 61 of the consumer credit act 1974.

7) In the event that the claiment fails to strict proof of as to the credit agreement being that of the original an in perscribed form, then the alleged agreement would be unenforceable and the defendant respectfully requests the claiments claim be struck out.

8) I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice. And that it compiles with the perscribed form set out in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

9) Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.

10) "On xxxxxxxx the defendant posted a request for a copy of the consumer credit agreement under the consumer credit act 1974 section 77/78, along with the statutory £1 fee in which the claiment had 14 days upon receipt of the the defendants request to supply the defendant with a copy of the alleged agreement. The claiment failed to supply the agreement within the perscribed timescale and still have not supplied the agreement, and as such are in default of the defendants request. Which would prohibit any such legal action/enforcement as per section 78 (6) "If the creditor under an agreement fails to comply with subsection (1)—(a) he is not entitled, while the default continues, to enforce the agreement" And likewise under section 77 (s.s 4 (A)) of the consumer credit act 1974."

11) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

12. I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

Statement of Truth

I, XXX believe the above statement to be true and factual.

Signed XXX

I believe section 6 would throw the spanners in the works for the claiment more than anything else. gven they have already admitted to not having the original contract documentation.

Now normally i would keep the embarressed defence simple and basic, but in your case i do feel you have legitamate grounds to have the claim struck out in its entirety, hence why i added section 6 and 7 respectfully. As the onus would then be on the claiment to proof the agreement is the original complete with original documentation (i.e. terms and conditions) and that it is in perscribed form in compilance with section 60 and 61 of the CCA Act 1974. Which i suspect will be impossible for them to prove given they admit they do not have at this time in their possession the original documentation - which is suspect is the terms of the agreement or that the agreement they have is not the original but a reconsituted copy.

However in the event that they do produce the original documents and agreement, then we have protectin under section 3 making it clear it is an embarressed defence which along with section 12, asking for permission to admend the defence upon such disclosure of documents. Means that we can then admend the defence accordingly if they were to product documents on the day.

As per the CCA Request it is calander days, so includes weekends etc.

Also i would wait for peter to respond and see what he suggests as well. As it would be better to get the opinion of both peter and myself than to just rely on my own advice, as peter may have something up his sleeve also, that may be of use to you.

[dennisdugong]

Re: Failed to send document’s after CPR 31-14

Hi Teaboy 2
All I can say is thanks for that.
If thats the case with the CCA it's up tomorrow so will wait and see if Peter can add anything and daft up defence ready for Monday.
Many thanks again and have a good weekend.
Denn.