**CLAIM DISMISSED ** CCJ for old debt - have no idea what to do - court claim

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thanks a million xx

[skilganon]

Re: CCJ for old debt - have no idea what to do - court claim

just to add to the signature on the claim form,

it is in breach of practice direction 22 3.10

3.10

A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

[FlamingParrot]

Re: CCJ for old debt - have no idea what to do - court claim

PT :yo: has done a very good job of summarising a lot of the points here: http://www.legalbeagles.info/forums/...889#post310889

Obviously not all of them would be relevant in this case and, as he says, it must not be copied but could be used as the basis to highlight any points relevant to this case. :typing:

There's quite a lot of points on there with regards to the DN that could be relevant to this case too. As for 'clause 2.2', could it be referring to the below?

17.3 The Default notice served fails to specify the information required by Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations.

The following paragraphs may be useful, it would be a question of replacing the relevant bits with details regarding the actual application form in this case, for example, if the form did not contain the prescribed terms at the time of signing it and the terms were supplied later (they were often sent with the card itself):

13.1 The Defendant avers that the application form, which he signed, was enclosed within a magazine or newspaper, which he purchased. The application was a glossy pamphlet, which was returned to Barclays Bank Plc T/A Barclaycard by the Defendant. Accordingly there was no copy of the agreement for the Defendant to retain, which is a breach of s62 Consumer Credit Act 1974, and the agreement is improperly executed.

13.2 The terms and conditions applicable were not provided until the credit token was provided to the debtor. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974.

13.3 Furthermore and without prejudice to the above paragraphs, the Defendant avers that the terms and conditions produced are not incorporated into the contract. There is no reference apparent within the signed application form to any accompanying terms and conditions therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act.

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thanks for taking the time to reply. TBHI am afraid this is a bit over and above my head. From memory i definately signed the terms when i got the card so i think

The terms and conditions applicable were not provided until the credit token was provided to the debtor. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974.

would apply but i cant be sure, so am not keen to add it in

however could i say the following as they have not produced a signed copy (have slightly changed it), do you think that ok?

t he Defendant avers that the terms and conditions produced are not incorporated into the orginal contract. There is no signed application form or any accompanying terms and conditions produced therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act.

they are also in breach of regulations 2.2 section 3 and 4 which is hugely useful!

http://www.legislation.gov.uk/uksi/1983/1561/schedule/2/made

thank you so much will amend in the morning

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

actually re reading the application form was sent to me ( you remember those pre approved letters of old) so i definately didnt have terms to keep from memory so perhaps that does apply

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Hi All
This is my final version - ready to go I hope

I have changed sections 4, 13, 18 , 20 and 25 and would be really grateful if you could have a look at it for me. sections 20 and 25 are the ones i am most concerned about

I only have until tomorrow morning to get this finsihed as am off to the hosp in the late morning - any help is grately appreciated,

XXXXXXXXXXXXX

CLAIM NOXXXXXXXX
REF: Lloyds Banking Group


BETWEEN:
CAPQUEST INVESTMENTS LIMITED
Claimant
and
LLLL
Defendant
_________________________________
Defence
_________________________________.

1.I, LLL am the Defendant in this action and make the following statement as my defence to the claim made by Capquest Investment Limited on 18^th February 2014

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.

The Claim
3.It is admitted that that the Defendant has in the past entered into agreements with Bank of Scotland and the Defendant believes this claim relates to an XXXXXX affinity credit card once held with Bank of Scotland, possibly opened in 1999, however the Statement of Case in the claim was vague, stating only that a credit agreement was held by the Defendant with Lloyds banking group and gave very few details as to what it related to.

4. The full name of the person signing the statement of truth or their position within the Claimants Solicitors is not stated on the claim form nor is a signature present as per CPR 22.1 and CPR 22.2 Exhibit XX in breach of practice direction 22 3.10. Exhibit A

5. On 24th February 2014 the Defendant made a written request to the request for inspection of the agreement and other documents as disclosed in the Claimants statement of case under Civil Procedure Rule 31.14. Exhibit B

6. The Claimants solicitors failed to produce documents and the Defendant sought a N244 unless order on 11th April 2014.

7. At the hearing on 4th July 2014 at XXXX County Court the following order was given: Exhibit C

IT IS ORDERED THAT
The Defendant's time for filing and serving a fully particularised Defence is extended to 21 days after the Claimant sends to the Defendant complete copies of:
( 1) the credit agreement
(2) the Default notice
(3) the notice of assignment
relied on by the Claimant

8. The Documents mentioned in the order were produced on DATE and shown to the Defendant in a bundle of documents marked Exhibit D -

The Credit Agreement

10. The Claimant has not supplied a true, signed and executed copy of the original agreement.

11. The Claimant supplied a reconstructed copy of the terms which were allegedly in force at the time of the alleged Default. Exhibit XX and a reconstructed copy of the terms they allege to be the current terms applicable to the account Exhibit XXX

12. The Defendant contends that the reconstructed Terms and Conditions are not a true copy of the Terms and Conditions applicable to the account. The card was specifically for XXXXXX XXXXXX XXXXXX members and nowhere in the document is the XXXXXX affinity card referenced, nor is the specific 0% introductory offer which would have been on the original terms that were allegedly agreed.

13.The Default Notice Exhibit XX refers the Defendant to Clause 2.2 of the Terms and Conditions, as ' contains details of the minimum payment you must make each month' However Clause 2.2 of the Current Terms provided by the Claimant Exhibit XX does not relate to 'minimum payment' instead refers to the order that a payment is applied to different transactions and related interest rates. Clause 2.2 of the Original Terms provided by the Claimant Exhibit XX refers to “The Cheques” and how they are to be used.

14. The Defendant thus contends the reconstructed Terms and Conditions are not a true copy of the Terms and Conditions applicable to the account, in the alternative the Defendant contends that the Default Notice template supplied in inaccurate and not a true example of what would have been sent.

The Default Notice

15. On XX/XX/14 the The Claimant supplied a template of the Default Notice they state was sent to the Defendant on 7th February 2011 Exhibit XX.

16. The Default Notice supplied states that 28 days to bring the account into order are allowed.

17. However the account appears to have been defaulted on or before the XXth February 2011 as it is entered on the Defendants credit file as a Default on that date. EXHIBIT XXX

18. The Default Notice Exhibit XX refers the Defendant to Clause 2.2 of the Terms and Conditions, as ' contains details of the minimum payment you must make each month' However Clause 2.2 of the Current Terms provided by the Claimant Exhibit XX does not relate to 'minimum payment' instead refers to the order that a payment is applied to different transactions and related interest rates. Clause 2.2 of the Original Terms provided by the Claimant Exhibit XX refers to “The Cheques” and how they are to be used.

19. Therefore the Defendant contends this brings into serious doubt whether the default notice supplied accurately demonstrates that which is alleged to have been sent by the Original Creditor.

20 The Defendant avers that the Default notice served fails to specify the information required b Consumer Credit Default Enforcement and Termination Notices Regulations 1983 Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations. The Claimant is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1) thus giving a right to demand immediate repayment of the sums claimed.

Consumer Credit Act

21. In addition to the Defendants request under CPR 31.14, on the 24th February 2014 a request has also been made to Capquest pursuant to section 78(1) Consumer Credit Act 1974 in order to obtain a true copy of the agreement which the claimant was demanding payment under and to obtain further information about the terms of the contract. Exhibit XX A true, signed, copy has not to date been supplied.

22. The Defendant accepts that the debt once existed, however the enforceability of the regulated agreement underpinning the debt is disputed. There are numerous breaches of the Consumer Credit Act 1974 which require proper investigation. Details of these breaches are set out below.

23. The Defendant contends that the document supplied to her in response to the formal requests under s.78 Consumer Credit Act is incomplete and does not contain any the terms applicable at the inception of the account.

24. The Claimant has also not provided a full statement of account in response to the Defendants’ statutory request; which further prevents the Defendant from assessing any charges or interest that may have been applied as only payments made from 2008 are evidenced. Exhibit XX

25. The Defendant avers that the terms and conditions produced are not the ones incorporated into the original contract. There is no signed application form or any accompanying terms and conditions produced therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act.

26. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

Therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the original creditor.
(b) show how the Defendant has reached the amount claimed.

The Defendant reserves her position to plead further should the Claimant provide the proper documents.

27.Accordingly, the Defendant avers that

a) The Claimant has not complied with s78 and s.87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.

b) The Claimant has failed to demonstrate the Defendant has any liability to themselves for the alleged debt.

c) Therefore, the Claimants Claim should be dismissed.

Statement of Truth


The Defendant believes that the facts stated in this Defence

[Amethyst]

Re: CCJ for old debt - have no idea what to do - court claim

22 I'd leave out ''22. The Defendant accepts that the debt once existed, however''

20 and 25 no problems I can see xx

[Amethyst]

Re: CCJ for old debt - have no idea what to do - court claim

Otherwise I think you have done an absolutely excellent job

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Oh thank you!

I really needed the Beagle rubber stamp before i pressed the button aw:

not me at all,,, very very much a team effort from all the folks here and especially you. So thank you thank you thank you I could not have got to this stage with out you !

as soon as I hear back I will update

much love

LLL

[Amethyst]

Re: CCJ for old debt - have no idea what to do - court claim

You should have about 28 days break now ... once court receive it they will send you a letter to confirm and fed it to the claimants who then have 28 days to respond.... then its the directions questionnaires ... tho hopefully the judge will make a further order in between, so you can relax for a little bit now xxxx Hope all goes well at the hosp xxxx

[mystery1]

Re: CCJ for old debt - have no idea what to do - court claim

http://www.justice.gov.uk/courts/pro...d_part07e#10.1



10. A true copy does not require a signature.

12. nor is the specific 0% introductory offer which was on the original terms that were allegedly agreed. Be assertive. Wishy washy maybes give judges room to manouvre.

23. The Defendant contends that the document supplied to her in response to the formal requests under s.78 Consumer Credit Act is incomplete and does not contain any the terms applicable at the inception of the account.You need to explain why.

25. The Defendant avers that the terms and conditions produced are not the ones incorporated into the original contract. There is no signed application form or any accompanying terms and conditions produced therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act. S61 has nothing to do with s78. S61 breaches should be pleaded seperately.


M1

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Hi M1

thanks for the feedback , i really appreciate it

Have amended do you think this is better ? 23 contains rewording for 12 as well

23. The Defendant contends that the document supplied to her in response to the formal requests under s.78 Consumer Credit Act is incomplete and does not contain any the terms applicable at the inception of the account, inlcuding but not limited to the card was specifically for XXXX members and nowhere in the document is the XXX affinity card referenced. The specific 0% time limited introductory offer given at the time which would have been on the original terms that were allegedly agreed is not included in the terms produced.


23. The Claimant has also not provided a full statement of account in response to the Defendants’ statutory request; which further prevents the Defendant from assessing any charges or interest that may have been applied as only payments made from 2008 are evidenced.

24. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

Moved this para down
25. The Defendant further avers that the terms and conditions produced are not the ones incorporated into the original contract. There is no signed application form nor any accompanying terms and conditions produced, therefore the terms cannot be considered to have been embodied by reference as laid out within section 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearly defines the word embody for the purpose of the Act.

[mystery1]

Re: CCJ for old debt - have no idea what to do - court claim

23. Full account ? It only needs to be signed and (a)the state of the account, and(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and
(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.


25. s61 is neither about what they have or can produce. S61 is about what was or was not there when you signed. It needs to be done from memory or records. If a prescribed term(s) was missing then it's missing and 127(3) comes to play. Read http://www.bailii.org/ew/cases/Misc/2012/19.html and i think you'll see what i mean.

M1

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

ok i think i get it now the s61 refers to what I actually signed not what was produced therefire

The Defendant avers that a pre printed application form, which she signed was sent by direct mail form XXXX which she was a member of . Accordingly there was no copy of the agreement for the Defendant to retain, which is a breach of s62 Consumer Credit Act 1974, and the agreement is improperly executed. ( which is true)

The terms and conditions applicable were not provided until the credit token was provided to the debtor, which was acknowleged by the defendant. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974.

AGain this is what happend the card was sent to me and i had to sign a slip and return it to say i agreed with teh T and Cs even though its so long ago i can remember doing it

furthermore the Defendant avers that the terms and conditions produced are not those incorporated into the contract.

am i on the right track?

[mystery1]

Re: CCJ for old debt - have no idea what to do - court claim

I'd say so :okay:

M1