Horsemad v Debenhams Storecard court papers - help!

[TUTTSI]

Re: Horsemad v Debenhams Storecard court papers - help!

I have also reported your thread to the team and asked them for urgent assistance. So hopefully you will get the help you need very soon.

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

Thank you also Tuttsi

[Amethyst]

Re: Horsemad v Debenhams Storecard court papers - help!

hiya, having a read back through, as I have to get up to speed on your case. Will email curly too .

Ame
xx

[Amethyst]

Re: Horsemad v Debenhams Storecard court papers - help!

horsemad - Okay stupid question time....bear with me

After you received the order 20th October ish, the claimants sent you the required documents and you entered a new defence within 21 days of that ?

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

thank you too Ame
------------------------------- merged -------------------------------
Yes, as posted in previous post, but it was struck out although the judge gave no reason for strike out.

[Amethyst]

Re: Horsemad v Debenhams Storecard court papers - help!

Legal Beagles - View Single Post - Horsemad v Debenhams Storecard court papers - help! that defence?



'''after reading the file Defence be struck out and Claimant at Liberty to enter judgement'......''

so he has had it. you spoke to the court and the claimants didnt apply for it to be struck ?

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

no, my defence was struck out and a judgement was entered against me. Which is why I am applying for ajudgment set aside.

[Amethyst]

Re: Horsemad v Debenhams Storecard court papers - help!

Right so what have you used to apply for the judgment set aside ? I can only see a defence on here Legal Beagles - View Single Post - Horsemad v Debenhams Storecard court papers - help! or is that your set aside application ? Or did you submit the N244 with it ?

Whats the order for the hearing say?

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

hi sorry for late reply, had other daughyer to pick up from nursery, horse to feed & new baby with colic for 4 hours - arrgh. I applied for judgement set aside using the form n244 - will scan up added attachment (which was an amended defence) in a bit (scanner at my dads).

I received a letter from the Court saying and I quote The District Judge has read your letter and has said the following " These matters can all be considered by me at the hearing on 4th march 2010. Defendant should produce medical evidence if she seeks an adjournment". my letter was basically asking him to give me a reason for first strike out of my Defence as I felt I was not properly prepared without it.

Do you think I should get him to give me a reason and go for an ajournment? Curlyben said that my first defenc was solid and should not have been struck out. My doctor wont have a problem giving me a sick note...

[Curlyben]

Re: Horsemad v Debenhams Storecard court papers - help!

Why can't they answer a simple question.
The defence you submitted was indeed good, so I'm at a lose here.

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

The clerk at the court I spoke to said I can write to the judge again. I feel I am at a disadvantage already, not knowing why my defence was struck out and surely I have a right to know prior to the hearing - dont I?

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

What should I do? I am scared to death of going to Court and dont really know what Im talking about and the Judge's refusal to give me a reason for strike out is making me even more nervous as I feel he has already taken cl/cohens side... Dont want to go, feeling unprepeared and making the whole thing 10 times worse -

Already had CL's DCA round at my house and my Dads house so am sure that if it go's in their favour they'll have their bailiffs round asap as well.....

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

CB/Ame

This is the updated defence/witness statement that was sent with the N244. let me know what you think

Defence
1) 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 pursuant to Civil Procedure Rules ("CPR") Part 16.5.
2) 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 courts attention to the following matters;
a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.
b) A copy of the purported written agreement that the claimant cites 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 form as laid out in Practice Direction 16. Paragraph 7.3.
c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.
Abuse of Process
3) It is also noted that the claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as I note the claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and it is requested that the court strike out this case as a clear abuse of the process.
4).Further to the case, on 18th August 2009 I requested the disclosure of information from the Claimant's solicitors which is vital to my defence in this case pursuant to CPR Part 18. The information requested amounted to copies of the Credit Agreement, the Assignment, the Default Notice, Termination Notice, referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including a copy of the Notice of Assignment and ‘proof of posting’ required to give the claimant a legitimate right of action.

5) The Claimant ignored my request in full under the CPR and I have not received all documentation requested, missing in particular 2003 -2004 statement of account and proof of posting. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.
Default Notice
6) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim.
7) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me prior to commencement of this action.
8) Without prejudice to the above, I put the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.
9) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-
S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) to enforce any security
10) I note the opening part of section 88(1) CCA, which states:-
88. Contents and effect of default notice.
- (1) The default notice must be in the prescribed form.......
The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.
11) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.
1 With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29
" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."
12) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.
13) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:
"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage... If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take..."the next step" "
"That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. ... he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right."
14) Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
15) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.
The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
Pre-action protocols
16. The Claimant CL Finance Limited has failed to follow the pre-action protocols in sofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

The Assignment of the debt

17. I believe the Assignment of the Debt does not comply with Law of Property Act S136, as the original Assignment should have come from Santander Cards on their Headed Paper and been sent by recorded Mail to myself,
136 Legal assignments of things in action
(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
(a)the legal right to such debt or thing in action;
(b)all legal and other remedies for the same; and
(c)the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a)that the assignment is disputed by the assignor or any person claiming under him; or
(b)of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.
Also notification should of been sent to the debtor informing them of the assignment as per s196
196 Regulations respecting notices
(1)Any notice required or authorised to be served or given by this Act shall be in writing.
(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.
(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.
(6)This section does not apply to notices served in proceedings in the court.
7. I require the Claimant produce proof of posting per s196 LoP Act 1925. As I have never received the Deed of Assignment before now.
18. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly, as also noted that the Notice of Assignment should have been from the Original Creditor (Santander Cards) to the Defendant Mrs Julie Haythorn.
37] Mr. Thornhill, counsel for Rodney and Portfolio, relies on Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 ALL ER 824 where the Court of Appeal with Lord Denning MR as President had to consider whether there was a valid notice of the assignment of a debt. In that case the defendants had a bank overdraft which was paid off by the plaintiffs in consideration for an assignment of the debt to themselves. The assignment was dated 26 June and on 27 June the plaintiffs called on the defendants for payment. In the letter of 27 June it was stated (incorrectly) that notice of the assignment had been previously given to the defendants. On the question whether the letter of 27 June constituted a valid notice of assignment, it was held that on the true construction of s 136 of the Law of Property Act, 1925 (identical in its terms to s 214) notice of assignment of a chose in action was good even though it contained no date and the incorrect statement could be ignored as an inaccurate surplusage; and (per Widgery LJ) it was immaterial that the letter was not written with the intention that it should perform the function of giving notice under s 136 (1).
19. I request that the court strike out the Claimants’ case as the Claimant has blatantly abused Pre Action Protocol and has no right to bring this action against me in their name as the debt has not been properly or legally Assigned before this action was brought about
Conclusion

20) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.
21) Alternatively, I respectfully request a judgement set aside judgement due to details as outlined above.
22) In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced prior to 2006, Consumer Credit Act 1974 is the relevant act in this case.
23) Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

Statement of Truth
I, believe the above statement to be true and factual to the best of my knowledge


Signed .....................

[Horsemad]

Re: Horsemad v Debenhams Storecard court papers - help!

CB, Amethyst, anybody - what should i do next please?

[Curlyben]

Re: Horsemad v Debenhams Storecard court papers - help!

Difficult.

IMHO your defence should not of been struck out, also CL have no right to send their collection agents to your or anyone else's address.

If you want to try and dispose of this, it might be worth approaching Cohens with a settlement offer, as per Dizzy. Go for 40-50% at BLAH a month. I'm sure Dizzy can throw her letter over for ideas.

Otherwise it will mean a trip to court, if nothing more than to allow you to have your say with the judge and find out his reasoning for the strike out.

As Dizzy said, these actions should never reach court, but not for the reasons the judges are thinking of.