**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

thank you SO MUCH - i really wasnt expecting that. OK will have another stab and post again. Sorry for being a pain - my stress levels are through the roof with this and work - you have helped me so much. thank you!

[Amethyst]

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

Sorry I'm pretty whacked, but try keep all the credit agreement arguments together, then your default notice arguments... I know its hard because they do overlap, but imagine you are the judge, and you have no idea of the case up to this point, so you need to tell the story and point him the right way in a natural order.

So Judge thinking through ''Hmmm they haven't complied with an order to supply x , x and x , but they have sent some documents , so what have they sent ? ahhh OK, so is it compliant ? no, why not ? can it be fixed ?....'' and so on. ( Not sure Judges actually think like that but that's how it works in my head lol)

[lowlowlola]

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

Thank you so much again - i cant imagine how tired you are - you are always there for us. 24/7 !!

[mystery1]

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

Hello all
I am trying to pull myself together over this. I would be grateful if a :tongue2: could cast an eye over my skeleton defence. Still no witness statement or docs supplied by the claimant. Still cant attend the court. I called the court who said basically it was too late to move the date as it was up to the judge and they said i should just write in as the hearing would go ahead.

Its 13 days til the hearing
my arguments are as follows, if you think i am on a loser please let me know

LLL – Skeleton Argument

Introduction
1.I am the litigant in person for this case. Due to a non-negotiable work commitment as explained in my email of 16^th February 2015 I respectively request that the court considers the case in my absence. What rule allows it ? Have you told the opponent ?

2. This argument is intended to elucidate and clarify the issues that I have raised in defence of the claim brought against me by Capquest Invesment Ltd for a Credit Agreement regulated under the Consumer Credit Act 1974. It is intended to be read in conjunction with the defence and witness statement I have already submitted to the Court and Claimant.

Background
3.The factual background leading to this argument are detailed in the defence and witness statement together with exhibits, in its entirety, and I therefore do not intend to repeat it here save to say that reference will be respectfully made to relevant paragraphs in support of specific points raised in this skeleton argument. You need to set it all out in here because the judge may not cross reference unless you tell them.

4. The claimant has failed to comply with the court order of XXX to submit all documents including a witness statement which they wish to rely on in court by 11^th December. Is this just for info or do you want the judge do allow/disallow or do something ?

5. The claim relates to a credit card agreement taken out in 1999 for a XXXX trade union affiliated card. Reguated by CCA 74

The Terms and Conditions Supplied
6. Further to a request under Civil Procedure Rule 31.14 The Claimant has provided two documents it claims are the reconstituted executed credit agreement in place at the time of opening the account and the current terms Exhibits D and E. No signed agreement has been supplied<< Significance ?

7. I respectfully submit that the reconstituted agreement supplied by the Claimant does not contain the prescribed terms and conditions applicable at the time of opening the account (paragraph 9 – 10 of my Defence ) and has not satisfied my request under s78 of the consumer credit act. Case law ? Significance ?

8. There was an element of confusion when inspecting the terms and conditions documents as they have been annotated “orig” and “current” however it appears that they have been transposed as the document marked origl refers to the Consumer Protection {Distance Selling) Regulations 2000 or the Financial Services (Distance Marketing) Regulations 2004 which would not have been in force in 1999 and the terms annotated current are dated on page 5 as 10/98. I have therefore taken it there has been an administrative error and have taken the document dated 10/98 as the purported original prescribed terms

9. The card referred to in the claim was promoted for XXXXXXXXXXXXXXXX XXX members and nowhere in the document is the XXXXXXXXXXXXXXXX affinity card brand referenced Did the original ?

10. The reconstructed agreement does not show the approved credit limit at the time of opening the account So what ? https://www.scotcourts.gov.uk/opinions/A483_09.html

11. The specific 0% APR time limited introductory offer which was in place at the time and the conditions of the introductory offer are not included in the document the claimant states are the reconstructed original terms that were allegedly applicable to the account. This is in your witness statement right ? (just checking)

12. The document What document ? states the interest rates under section 10 iii) “The APR is 19.9% for all transactions except Cash Advances for which the APR is 21.8%.” There is no mention of the 0% rate or the time frame for the promotional material, unlike in section 3.3 of the current terms they have supplied. This matters because ?

13. The reconstructed agreement does not contain a schedule of charges in relation to the credit card in section 10 iv the agreement stages “If the bank has cause to communicate with the Principal Cardholder as a result of a breach of this Agreement the Bank may debit the 14. Card Account on each occasion with a charge in accordance with the current tariff which will be pre-notified to the Principal Cardholder”. The charge tariff applicable at the time which I believe was included in the original terms has not been supplied.This matters because ?

The Default Notice
14. The claimant also supplied template of the Default Notice they state was sent to the Defendant on 7th February 2011 Exhibits F and G I respectfully submit that given the inaccuracies stated in my defence paragraphs 12- 18 The claimant has failed to show me that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1). It doesn't matter what they show you. They have to prove to the court.

The inconsistencies I have in my defence Paragraph XXX highlighted also lead me to bring into serious doubt that the reconstructed Terms and Conditions are a true copy of the Terms and Conditions applicable to the account or if they are that the Default Notice template supplied is inaccurate and not a true example of what would have been sent. I vaguely know what you are getting at but a judge with no clue/interest is going to gloss over it if you are not clear

The Original Application
15. The original agreement sent by direct marketing mail from the Unison Trade Union which I was a member of and returned by mail to the Bank of Scotland by her. 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 a breach of s62 Consumer Credit Act 1974 What does improperly executed mean ?

The Relevant Legal Framework
Terms and Conditions
16. I contend that the reconstructed Terms and Conditions are not a true copy of the Terms and Conditions applicable to the account at the time of the inception of the account . Exhibit D for the following reasons:

17. I contend that the Claimant (and/or the original creditor) has failed to satisfy my s78 CCA1974 request for valid copies of any valid agreement that they may have and that as a result of s78 (6) CCA 1974 the agreement is therefore unenforceable against me. To satisfy a s78 CCA 1974 request the documents sent must comply with the Consumer Credit (Cancelation Notices and Copies of Documents) Regulations 1983) (“the copy documents regs 1983”).


18. I wish to draw the courts attentions to Carey V HSBC (attached) in the ruling it was made clear that the creditor needs to provide a true copy of the executed agreement, and where the original had been varied either a copy of each discrete term that had been varied or a copy of the current terms and conditions as the contract stands at the date of the request.

19. Carey V HSBC 53(12) states that the creditor must ensure that the contract is “honest and accurate” for the reasons stated in paragraphs 6 – 13 above I contend that reconstituted agreement sent to me is not an accurate representation of the terms and conditions at the time the account was openend.

20 It is respectfully submitted that the document supplied is improperly executed because it is not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. The agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

21. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

The Default Notice
22. I respectfully submit The claimant has failed to show me 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.

23. I further contend that the Default notice produced fails to specify the information required Consumer Credit Default Enforcement and Termination Notices Regulations 1983 Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations given as refrerred to in para XX of my defence

The Original Agreement
I respectfully submit that the terms and conditions applicable at the time the account was opened were not provided until the credit token was provided to the defendant, which was acknowledged 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

I refer to HFO Capital limited v Wegmuller paragraph 18 (attached) in which the case of HFO Services Limited v Kirit Patel is referenced 9.
His Honour Judge Platt said at paragraph 19:
-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue.-�
The Claimant has made submission of evidence that the agreement was properly executed.
Conclusion
For the For all the above reasons, I respectfully request this Honourable Court strikes out the claim

You have to think that the judges knows nothing. If you gave that to a logical 15/16 year old with no clue about the consumer credit act do you think they'd have any idea what you mean ?

Read the ones on http://learnmore.lawbore.net/index.p...eton_Arguments and see if you can see what they are saying. It's not CCA.

M1

[lowlowlola]

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

Thanks for your comments M1

I am working through a redraft - i realise the inadequacies in the text , I am still on huge learning curve.

your help is very much appreciated

LLL

[lowlowlola]

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

Thank you to all for help in this. I would be really grateful if you could cast a beagle eye over my second attempt. I am sure it is still poor ( the default bit seems weak) but I think it is much better than the first draft thanks to Amethyst's knowledge and never ending support and M1's expert input

Thank you - i really am truly grateful

"Ignorance is the curse of God; knowledge is the wing wherewith we fly to heaven"

Introduction

1. I am a litigant in person and Defendant in this case.

2. Due to a non-negotiable work commitment as explained in my email of 16th February 2015 I respectfully request that the court considers the case in my absence as per CPR 27.9 and the content of this document. I have also served the Claimant with notification and a copy of all documents filed with the court

3. The Claimant has failed to comply with the court order of 3^rd November to serve and file all documents on which they intend to rely to the court before 4pm 11th December 2014. The Claimant has not applied to have the order set aside, varied or stayed. I therefore respectfully ask the court gives consideration to refusing to take into account any documents which have not been submitted or sent to the Court and Defendant as required by the Order.

4. This argument is intended to elucidate and clarify the issues that I have raised in defence of the claim brought against me by Capquest Investment Ltd for a Credit Agreement regulated under the Consumer Credit Act 1974. It is intended to be read in conjunction with the Defence and Witness statement I have already submitted to the Court and Claimant and can be found at Exhibit A and B.

5. I respectfully submit that the documents supplied by the Claimant previously in response to the Order of Deputy District Judge Morrison dated 4 July 2014 fail to satisfy the requirements under the Consumer Credit Act 1974.

Background

6. The claim relates to a Credit Card agreement regulated under the Consumer Credit Act 1974.

7. The Claimant submits the account was opened in 1999.

8. The original lender was Bank of Scotland. The Credit Card referred to was a UNISON Trade Union affiliated credit card.

The Credit Agreement

9. The original application was a direct marketing leaflet sent by the Unison Trade Union to my home address and returned by mail to the Bank of Scotland.

10. The application leaflet was a single document and I did not retain a copy of the application.

11. I did not receive a copy of the application on receipt of the Credit Card. I submit that this is a breach of s62 Consumer Credit Act 1974

12. I respectfully submit that the terms and conditions applicable at the time the account was opened were not provided until the credit token was provided to the defendant, as stated in my witness statement para X in breach of s61 (1)(a) Consumer Credit Act 1974

13. Accordingly I respectfully submit 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

14. I wish to draw the Court’s attention to the judgement made by HFO Capital limited v Wegmuller paragraph 18 (attached) in which the case of HFO Services Limited v Kirit Patel is referenced 9.
15. His Honour Judge Platt said at paragraph 19:
“Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue” I ask that in my absence the court considers the statements in my witness statement as evidence to the steps taken to open the account in 1999.

16. The Claimant has provided two documents it alleges are the original credit agreement and the current terms as varied ( Exhibits D and E ).

17. The documents have been annotated by the Claimant as “orig” and “current”.

a. a)The document marked ''orig'' refers to the Consumer Protection {Distance Selling) Regulations 2000 and the Financial Services (Distance Marketing) Regulations 2004 which would not have been in force in 1999.

b. b)The terms annotated ''current'' are dated on page 5 as 10/98.

c. c)I respectfully submit that this is an error on the part of the Claimant and the document dated 10/98 should actually be read as the alleged original agreement.

18. It is denied that the document presented as the Original Credit Agreement is a true copy of the Credit Agreement. I have not seen this agreement previous to the current proceedings and did not sign an agreement in those terms.

19. The card referred to in the claim was promoted specifically for UNISON trade union members and was branded as such. The document supplied does not reference UNISON at all as opposed to the original agreement which used the UNSION brand.

20. I submit that the document marked “current” exhibit XX supplied by the Claimants do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3) for the following reasons

a. The agreement exhibit XX does not reference the specific 0% APR time limited introductory offer which was applicable at the time of opening the account witness statement para XX contratry to .(s10 Consumer Credit (Agreements) Regulations 1983. The document states the interest rates under section 10 iii) There is no mention of the 0% rate or the time frame for the promotional material, unlike in section 3.3 of Exhibit XX they have supplied.

b. b)The agreement supplied exhibit XX does not contain a schedule of charges in relation to the credit card in section 10 iv the agreement stages “If the bank has cause to communicate with the Principal Cardholder as a result of a breach of this Agreement the Bank may debit the Card Account on each occasion with a charge in accordance with the current tariff which will be pre-notified to the Principal Cardholder”.

21. It is respectfully submitted that the document supplied is improperly executed because it is not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983.

22. I wish to draw the courts attentions to Carey V HSBC (attached) in the ruling it was made clear that the creditor needs to provide a true copy of the executed agreement, and where the original had been varied either a copy of each discrete term that had been varied or a copy of the current terms and conditions as the contract stands at the date of the request.

23. Carey V HSBC 53(12) states that the creditor must ensure that the contract is “honest and accurate” for the reasons stated in paragraphs 6 – 13 above I contend that reconstituted agreement sent to me is not an accurate representation of the terms and conditions at the time the account was opened.

24. 21. Consequently, I respectfully submit the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.


Default Notice
25. 13. The claimant supplied template of the Default Notice they state was sent to the Defendant on 7th February 2011 Exhibits F and G

26. Upon checking my credit file shows that the account they refer to was defaulted on or before the 16 February 2011, contrary to the 14 day time frame allowed for in CCA 1974 s88.2 before action is taken

27. The Default Notice submitted by the Claimant refers the Defendant to Clause 2.2 of the Terms and Conditions, as ' contain details of the minimum payment you must make each month' However Clause 2.2 of the Current Terms provided by the Claimant Exhibit E 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 D refers to “The Cheques” and how they are to be used.

28. I submit that the Claimant has not proved 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.

29. I further submit that the Default notice produced fails to specify the information required Consumer Credit Default Enforcement and Termination Notices Regulations 1983 Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations given as referred to in para XX of my defence


30. Conclusion
31. For the For all the above reasons, I respectfully request this Honourable Court strikes out the claim

[lowlowlola]

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

Ps please ignore formatting exhibit nos etc i will tidy this up

[mystery1]

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

10. Do you mean there was no copy for you to retain ?

12 & 13 Caselaw !!!! Wilson etc Wegmuller is fine but not binding. http://www.bailii.org/uk/cases/UKHL/2003/40.html

You need to separate the 172 (3) argument from the s78 argument.

26. Your credit file default as hee haw to do with the default notice.

What is the consequence of a bad default notice ? Harrison v link para 75

M1

[lowlowlola]

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

Thanks for such a speedy response m1 ! I will have another stab . I do find the section 78 and 172 really confusing . I'll re re read it all .

I think I'm onto a loser as I can't attend but even with such a small chance I need to keep on going till the end !

[mystery1]

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

S127 is whether the prescribed terms were there when you signed. The copy you requested means nothing. Wilson, Wegmuller etc

S78 is whether the copy they sent you is a copy of what you signed. Doesn't matter if the prescribed terms were present or not it only matters if the copy matches what you signed. Koetcha, Moore, Bachellier, Robinson etc

M1

[lowlowlola]

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

Thanks m1 ... You are amazing !

[lowlowlola]

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

Hi All

revised the doc as per M1's invaluble help - i finally got my head around s127 and s78!!

stupid question - can you serve documents via email or does it have to be hard copy?. I want to serve the claimant solicitors as late as possible so as not to advantage them -

[mystery1]

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

They might accept email service. I seem to recall it's their choice and you need to ask.

M1

[lowlowlola]

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

Thanks m1 ! I will send next day delivery to be water right. It will be received 7 days before the hearing if I post Monday as per cpr 27.9 , I have already send the court papers .

I cant thank you enough for your help with all this , I really do appreciate it


lll

[lowlowlola]

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

So lo and behold my orginAl agreement ( with out the t & cs )!landed on my dormat three working days before trial . The judges order was for all docs to be supplied by 11th dec They stll can not prove tat the terms and conditions I singed are the ones I supplied .. Any advice ??

Am about to get on a plAne to china so feel royally screwed

t hanks