Help with defence to summons from DCA

[Goldlady]

My OH has received a summons from a DCA for £760 including costs which we have until Friday to file our defence against. I have drafted out a defence which follows and should explain the position. The link to the alleged CCA is

Lindyg3101 - Photobucket - Video and Image Hosting

This is also a thread on another site (!) but I am not getting a great deal of response in my hour of need.

The defence I have so far is:

The defendant disputes the full amount of the claim on the basis that the claimant has been unable to provide a fully executed copy of the Consumer Credit Agreement as specified in ss 77-79 of the Consumer Credit Act 1974, and that the agreement the claimant seeks to rely on is merely an application form. (NOT SURE IF THIS IS RIGHT - A LINK TO AGREEMENT IS ABOVE)

Further the defendant states that the claim was issued without any warning and during the course of negotiations with the claimant to make reduced payments after the intervention of the Citizen Advice Bureau. The defendant would also point out that the claimant had agreed to reduced payments on a debt from the same original lender (GE Money) for a larger sum following a letter dated 14 April 2007 from the defendant regarding both accounts, however the claimant overlooked the second quoted account number - copies of all correspondence will be supplied to the court. After the defendant pointed out the claimant’s error a letter requesting a statement of affairs was received on 15 June 2007, the statement of affairs was returned by the defendant on 16 June 2007 - the claim was then issued on 25 June 2007 before any reply was received from the claimant.

The defendant would also point out that he and the claimant had in place a payment arrangement from April 2006 until March 2007 and that the request to further reduce the payment was clearly stated to be a temporary state of affairs until the defendant’s mortgage arrears were cleared. The defendant was advised to make this offer of reduced payments by GE Money themselves and this was backed up by the Citizen Advice Bureau. By seeking to obtain judgment against the defendant the claimant has chosen to ignore all prior discussions and will further impede the defendant’s attempts to reduce his indebtedness.

Additionally the defendant has already disputed the payment protection insurance with the original lender - payments of this and other unlawful penalty charges amount to £208.45 which have incurred interest charges of £33.56. The claimant is aware that the defendant has disputed this insurance however seems to have chosen to ignore this as well as the fact that discussions were in progress between them.

ANY ADVICE/GUIDANCE/ALTERATIONS WELCOME

MANY THANKS

GOLDLADY

[veilside01702]

Hi Gold,
Just wanted to ask a few questions first....
What date did you send the CCA request and did they send a satement of account and terms and conditions with what they did send you???
did you send the required £1 fee?
standard letter?
Did you tell them the account was in dispute??
Did you stop all payment to the claimant?
Am i right in thinking that you are attempting to reclaim the PPI, charges and interest and they have started a claim aginst you whilst you are doing this??
Russ

[Amethyst]

Hi Gold.

If you take a look at hellhasnofurys HFC thread she has a copy of the defence I used on there. Take a look and I'll come and go through it all a bit later on.

Ame
xx

[Goldlady]

Hi thanks Ame will have a look.

Veil - we sent the CCA letter on 27 June (just after summons arrived) with the £1 which they cashed. The letter did not say the account was in dispute. All we received in response was what I have posted on photobucket - no T&Cs or statement of account. We last paid them £20 in March after which we sent them the CAB letter.

[Amethyst]

Hi Gold

The form you have posted is an enforceable credit agreement.

Can you post the full POC you have received.


This is the defence I used in similar circumstances.

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.

[Goldlady]

The Claimant's claim is for the sum of £619.33 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and GE Capital Bank Limited under reference xxxxxxxxxxxxxx and assigned to the Claimant on the 13th December 2006 notice of which has been given to the Defendant.

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served on the Defendant pursuant to Section 87(1) of the CCA74. The Claimant claims the sum of £619.33.

[Goldlady]

Hi again, thanks for all your help so far. I have just been looking at the Agreement and nowhere does it say the lender has the right to assign the debt. We do have a notice of assignment from the DCA, not the original lender, but I wondered if they are legally allowed to pursue the debt as we did not permit this when the original agreement was signed. Any thoughts?

[veilside01702]

Hi Gold, Unfortunately it looks like it is too late to fight this....
It looks like they served the default correctly.....unfortunately...
You should be able to claim the £242.01 back for the interest, penalty charges and PPI as long as it was mis-sold to you.
I can't think of any way out of this....
Sorry I couln't help....
Russ

[veilside01702]

does it say about processing your data on the agreement??
They usually have something to say you agree to them processing your data / information...and they may share it with third parties....
They are unfortunately within their rights to sell your debt on as long as it is assigned legally....
Sorry again...
Russ

[Goldlady]

Russ, I have read the thing three times and I can't see anywhere about them sharing our data - only the bits about registering with credit reference agencies. If anyone has time there is a link to it above.

Thanks for your help - it is much appreciated - even if it is not good news!!

[Goldlady]

Going for it - final draft of defence follows:

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all. It is averred that the Claimants have commenced these proceedings unlawfully and vexatiously, having failed to prove that a credit agreement exists between CL Finance and myself. In June 2007, in response to my request the Claimants provided what they have stated is a copy of a credit agreement. The document furnished however, is a copy of an application form, which is not a credit agreement. The document provided does not accord in form and content with sections 60 and 61 of the Consumer Credit Act 1974, or the Consumer Credit (Agreements) Regulations 1983, which stipulates the fundamental requirements for credit agreements. Specifically, the application form does not contain the prescribed terms of the alleged credit agreement; and given that the Claimants are asserting that the document furnished in June 2007, is a copy of the purported agreement, the fact that said document does not detail any prescribed terms, renders the alleged agreement entirely legally unenforceable and these proceedings are completely unfounded. Additionally there is no section of the application form which permits the original lender to assign or share details of the defendant with persons other than credit reference agencies.

The request for the alleged credit agreement was made under section 78(1)running account credit, of the Consumer Credit Act 1974. CL Finance have issued a Court claim without having any proof that a credit agreement exists. I would therefore contend that the Claimant’s conduct amounts to unlawful harassment.

Further, the claim was issued without any letter before action, which is in breach of the Pre-Action Protocols of the Civil Procedure Rules, and also during the course of negotiations with the claimant to temporarily reduce the payment arrangement already in place for the preceding twelve months, after the intervention of the Citizens Advice Bureau. The defendant would also point out that the claimant had agreed to reduced payments on another debt from the same original lender for a far larger sum following a letter dated 14 April 2007 from the defendant regarding both accounts, however the claimant overlooked the second quoted account number - copies of all correspondence will be supplied to the court. After the defendant pointed out the claimant’s error a letter requesting a statement of affairs was received on 15 June 2007, the statement of affairs was returned by the defendant on 16 June 2007 - the claim was then issued on 25 June 2007 before any reply was received from the claimant.

Additionally the defendant has already disputed the payment protection insurance with the original lender - payments of this and other unlawful penalty charges amount to £208.45 which have incurred interest charges of £33.56 to date.

[veilside01702]

Additionally the defendant has already disputed the payment protection insurance with the original lender - payments of this and other unlawful penalty charges amount to £208.45 which have incurred interest charges of £33.56 to date.

Only one thing gold...if you say you have disputed insurance and there are penalty charges on the loan and interest!
The court may see it as you have accepted an agreement....
why would you dispute the PPI on an agreement that doesn't exist??

This may go against you if you dispute any agreement exists??

I would remove the unlawful harrassment bit....may get the courts to think you are telling them what is right??
How I read it anyway....

Only a thought....I would check with saphire and amethyst first before sending it...
They are the ones with most experience in this field... more than me...

I would also write the letter in a bulletin style as amethyst did....easier for the court to read and understand...
Put things in date order as they occured, when you contacted the citizens advice bureau, when you wrote to them, etc..


I Personally would also fire off a CCA request for the other larger loan, to see what comes back...but check with ame and sphire first on this.....
Might give you some leverage if they can't provide that agreement exists either??

I agree there are no terms and conditions on this form, but were there T&C's on the back of original copy??
Be careful they are still within the time frame to send them out as well as statement of account....
I am still trying to come up with an approach to this and some kind of help gold...
I hate seeing them act like this and get away with it...

oh and it is 4.41 AM on my birthday....lol
I couldn't sleep and thought i would pop in and try again......lol
Can't stand it when I am stumped......lol
Speak to you soon...
Russ

[Sapphire]

I shall hold my hands up and say that I am not very confident with court stuff, and would not like to advise on the defence as I'd hate to point you the wrong way.
IMHO I think the Amethyst is the best person for this, hopefully I will learn a hell of a lot from her myself.
I would CCA the larger loan and see what paperwork comes back, I think it can't do any harm to have copies of everything they have on you, maybe an SAR as well, you never know what you might get back.
I have done this on all of my debts, just so that I know what I am dealing with.

sapphire

[Goldlady]

Hi thanks sapphire and russ. Unfortunately as we were going away yesterday I sent it down the line - I did change it slightly from the above. I will just have to hope that there is enough to put them off fighting it. I agonised about the PPI for ages Russ for the reason you state, but then thought if all else fails i want to be able to reduce the debt without having to pay for a counterclaim.

Also now agree about the bullet points - again too late - will remember this for next time LOL!! I was concerned about the amount of space available for online defence but then found that 8000 characters is quite a lot.

Thanks for the input guys - I will let you know how we get on.

Goldlady

I suppose if we lose the court won't make us pay more than we can afford