help needed please - application form as CCA sec 77 ?

[Amethyst]

also just popping this here - once we work out where we are with the CCA request and Application form....

Quote:

1. This Defence is filed and served without prejudice to the right of the Defendant to
apply for summary judgment in respect of and/or to strike out the Particulars of Claim.

2. The Defendant on the 12th January 2006 wrote to the claimant to request a copy of the original copy of the credit agreement (enclosed D1).

3. This has not been sent

4. Under the Consumer Credit Act 1974 (Sections 77−79) the defendant was entitled to receive a copy of their credit agreement on request.

5. The Consumer Credit Act 1974 (Sections 77−79) state clearly that the claimant had 12 days to supply this, and if not supplied the agreement becomes unenforceable. (( WE MAY NEED TO QUOTE SECTION THAT SPECIFIES THE DAYS ))

6. Failure to comply with Consumer Credit Act regulations is fatal to the claimants claim.

7. The Defendant invites the Claimant to remedy the above by supplying a copy of the original credit agreement. In the event that the Claimant fails to do so within 14 days of the service of the Defence then the Defendant will apply to the Court for an Order striking out the Particulars of Claim.

8. The Defendant reserves the right to plead further to the Particulars of Claim once and if the Claimant produces the ornaginal agreement. In the meantime, it is denied that the Claimant is entitled to the relief claimed or any relief whether as pleaded or at all.

[Amethyst]

Hi Hell

This is the defence I used in my case.

DEFENCE

1.Save as is specifically admitted in this Defence – the Defendant denies each and every allegation set out in the particulars of Claim.

• It is admitted that the Defendant has an Affinity Loan Account with the Claimant numbered 00000xxxxxx

• It is admitted that the Defendant has an outstanding balance on the account to the value of £xxxx.xx, as detailed in the particulars of claim.

• The Defendant contests the amount of £1009.93, the ‘Collection Charge’ as entered in the particulars of claim by the Claimant.

• The Collection charge is a disproportionate penalty and therefore unenforceable as it is contrary to common law.

• Further, as a disproportionate penalty, it is invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999 Para 8. and sch.2(1)(e).

• In the event the Collection Charge is not a disproportionate penalty then it is unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

• The Defendant has repeatedly asked the Claimant to give a breakdown of this charge in order to justify the amount but they have declined to do so.

• The Defendant has offered a reduced monthly payment, through the Consumer Credit Counselling Service, to the Claimant for repayment of this account. This offer was made to the Claimant on 22nd June 2006. This proposal included a full financial statement with regards the Defendant.

• The amount being paid to the Defendant each calendar month is £66.36.
  The first payment was made on 18th August 2006 and received by the Claimant on the 25th August 2006.

• The account was transferred to Restons Solicitors by the Claimant on the 10th August 2006.

• The Defendant contacted Restons Solicitors on the 14th August 2006 to discuss the repayment proposal. Restons Solicitors agreed to contact the Consumer Credit Counselling service to arrange the new payment instructions. The Consumer Credit Counselling Service have not received any communication from Restons Solicitors.

• The proposal for repayment was sent to Restons Solicitors by Consumer Credit Counselling Service on 14th August 2006.

• A breakdown of the Collection Charge applied by the Claimant was requested from Restons Solicitors. This request was refused and no breakdown has been received by the Defendant.

• A letter requesting information from the Claimant was sent to Restons Solicitors by Royal Mail Special Delivery on 30th August 2006. A copy of this letter will be presented to the court. A reply to this letter has not been received.

[Amethyst]

Thanks for sending the ''agreement''

I have asked a couple questions in the CCA forum on your behalf. If anything comes up over the road' regarding it can you let me know.

Also over there have a read of Kotum's thread - search on HFC restons....I think we did a very similar defence for him that you would be looking at for this.

Defend on the lack of CCA agreement, and in the alternative defend the additional charges.

[Amethyst]

Thanks Hel.

I'll be back after the school run - have pm'd you my email addy

You can defend the ''collection charge'' on the same basis as the penalty charges.

Most likely outcome of this is you'll get a ccj for 8500 ish and be ordered to pay at £ 43 a month as you do currently.

Do you own your house ?

[hellhasnofury]

Hiya Hell

I'm so glad to have got hold of you. I received your original post in my email subscriptions today.


Okay....firstly don't panic or worry or anything


Can you type out the Particulars of Claim from their N1 form. What dates you have to respond by etc. As I remember you were aware this was coming and the CCA request and SAR you got in so you were ready for the claim. If theres anything on your thread on CAG may help let me know on here or by PM/

Don't write to anyone yet.

We will write a defence/admission, well you will I might try and help you a bit

Give me the background, and the POC/Dates of the claim and we'll go from there.

I've been there, Ashley will help you out too, so try not to worry.


Oh and re the CCA form just keep hold of it for the mo - if you have a scanner or anything it would be handy to see it but I wouldnt expect anything to be wrong with it. The T&C with it should mention the collection charge % for defaulted accounts which would be handy to see for wording the defence.

Hello Amethyst,

Many thanks, truely grateful,

I have tried to download a copy of the ca, but my computor won't have, so maybe I could e-mail it to you.

The story goes, I have been picking through my creditors one by one and unfortunately for me hfc was the last. Last year the pooh hit the fan and I found myself up pooh alley, owing a few creditors a lot of money. I approached payplan and set up a debt management plan to pay of my debts for the rest of my life. I have made regular payments of £43.84 every month, and never defaulted on my agreement.

Out of the blue a couple of weeks ago hfc rang and asked me to pay more money. I told them I could not give them anymore. I owned them £8,248.01 They told me that they would apply to the courts to put a charging order on my house.

I then sent a sar and a ca request.

I then get a letter from restons solicitors demanding that I pay them £9,743.61. This includes a collection charge £1,374.66 in five days.

I have contacted payplan and they told me not to worry. HELLO!!!!!

I received the ca, but have not received the sar which they are now in default.

I then received the court sumons yesterday

POC

The Claimant claims payment of the overdue balance due form the Defendant under a contract dated on or about the 13/11/2002 in the sum of £9743.61 inclusive of the interest to the date of this summons at 19.8% per annum from 20/04/07 to 22/05/2007.

Particulars ac no xxxxxxxxxxxxx

Date Item Value

20/04/207 Default balance 8246.01
20/04/2007 Collection Charge 1374.60
15/05/2007 Post refrl cr -43.84

15/05/2007 0.00

22/05/2007 Interest 166.84
TOTAL £9,743.61

Together with:-
interest pursuant to contract at the rate of 519.51 pence per day
to the date of judgement or sooner payment.

Amount chaimed
court fee 240.00
Solicitor's cost 100

[Amethyst]

Hiya Hell

I'm so glad to have got hold of you. I received your original post in my email subscriptions today.


Okay....firstly don't panic or worry or anything


Can you type out the Particulars of Claim from their N1 form. What dates you have to respond by etc. As I remember you were aware this was coming and the CCA request and SAR you got in so you were ready for the claim. If theres anything on your thread on CAG may help let me know on here or by PM/

Don't write to anyone yet.

We will write a defence/admission, well you will I might try and help you a bit

Give me the background, and the POC/Dates of the claim and we'll go from there.

I've been there, Ashley will help you out too, so try not to worry.


Oh and re the CCA form just keep hold of it for the mo - if you have a scanner or anything it would be handy to see it but I wouldnt expect anything to be wrong with it. The T&C with it should mention the collection charge % for defaulted accounts which would be handy to see for wording the defence.