Court Summons from Sigma re M & S credit Card

[PlanB]

Re: Court Summons from Sigma re M & S credit Card

That should get you past the "real prospect" test with those and the illegible doc and your assertion of no terms with the application. Some Judges might shoot you just because you are a filthy debtor who used the net. It does happen but not always.

Yep, I had a DJ who thought I was a filthy debt avoider but here's what PT had to say about that

http://paulatwatsonssolicitors.wordp...ebt-avoidance/

A wise DJ once said "we're here to judge facts not morals". I hope I get that DJ next time :nod:

EDIT: Plan B = Di Mayhew the dirty debt dodger in the Santander vs Mayhew case

[mystery1]

Re: Court Summons from Sigma re M & S credit Card

If they attempt summary judgement then these cases should help to defeat it.

http://www.bailii.org/ew/cases/EWCA/Civ/1999/3053.html

http://www.bailii.org/uk/cases/UKHL/2001/16.html




Then use http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

http://www.bailii.org/uk/cases/UKHL/2003/40.html (http://www.bailii.org/ew/cases/Misc/2012/19.html if a judge says Wilson is out of date !)

HFO CAPITAL V ROBINSON JUDGEMENT (1).pdf

That should get you past the "real prospect" test with those and the illegible doc and your assertion of no terms with the application. Some Judges might shoot you just because you are a filthy debtor who used the net. It does happen but not always.

M1

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

Thanks for your view PT.
G

[pt2537]

Re: Court Summons from Sigma re M & S credit Card

Does that mean that the CCA 1974 statute no longer stands as regards being readable, failing to show the prescribed terms and containing the terms and conditions of the agreement?
IF so, so be it, I live on pension credit and disability allowance, with no equity in my house so its a stone has no blood situation for me.
G

No its not so much that, but i have just had to do an appeal for a guy who had pleaded his defence, raising many of the issues you did but because it wasnt framed properly, he ended up losing a summary judgment application and we over turned it on appeal.

You have to realise that you start in these cases on a tilted playing field from the outset, these guys have millions to throw at a case, our clients have very little, but the problem is when you get before a judge unless you have a good barrister and a well prepared case, you will struggle. Even with a good barrister it can be difficult.

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

Does that mean that the CCA 1974 statute no longer stands as regards being readable, failing to show the prescribed terms and containing the terms and conditions of the agreement?
IF so, so be it, I live on pension credit and disability allowance, with no equity in my house so its a stone has no blood situation for me.
G

[pt2537]

Re: Court Summons from Sigma re M & S credit Card

They may apply for summary judgment, im not sure the Defence holds good if im honest. I think that its open to a Part 24 application especially if they want to chance their arm.

I have just done an appeal on the same thing where the claimant went for and got summary judgment.

If they dont, then the court will send you an allocation questionaire where you will need to provide draft directions etc

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

Defence in can anyone tell me what happens next?
G

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

Thanks again M1 the spaces altered when pasted into cag for some reason they are correct in my word processor.
G

[mystery1]

Re: Court Summons from Sigma re M & S credit Card


http://www.compactlaw.co.uk/free-leg...t.html#Defence

IN THE [TOWN]	COUNTY COURT	CASE No.
BETWEEN
	[IVOR PROBLEM]	Claimant
	AND
	[JUSTIN TIME]	Defendant

DEFENCE

The Claimants pleaded case is not sufficient for the purposes of CPR 16.The Claimants pleaded case is lacking the most basic facts and detail such as following pre action protocols, dates of demands made by the Claimant, date of default,date of service of notice of assignment,date of service of default notice and date of agreement, which has been alleged to be breached.This information is fundamental to the Claimants case, yet no details are offered or pleaded.


It is submitted the claimant failed to meet the regulations of PreAction Protocol PD Annex B by failing to send a letter before action.


The claimant has, so far, failed to permit inspection of documents mentioned in the statement of case in accordance with the defendants CPR 31.14 request and further follow up requests for compliance with the request. The defendant respectfully requests permission to make any amendments to the defence once disclosure takes place and seeks the award of costs against the claimant for same.


The Claimant is put to strict proof of the assignment of the Defendants account and will be required to produce documents at trial of the same.
No admissions are made in respect of the assignment.


The Claimant is put to strict proof of a valid default notice having been served upon the defendant and will be required to produce documents at trial of the same. No Admissions are made in respect of the default notice.


The Claimants are put to strict proof of termination and the defendant denies having received same and the claimant will be required to produce documents at trial of the same.


The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts)Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest.Interest being owed as claimed is denied.


The defendant admits entering in to an agreement with Marks & Spencer Financial services PLC but deniesthat the Claimant is entitled to the relief claimed or at all on the basis of numerous breaches of statutory requirements. The details ofwhich are set out below.


Section78 (1) Consumer Credit Act 1974


The Claimant is in breach of itsobligations under the Consumer Credit Act 1974 section 78(1). TheDefendant made a request in writing for a copy of the executed credit agreement. The document provided did not comply with the requirementsof the aforesaid section because

The document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983, Accordingly s78 (6)Consumer Credit Act 1974 acts as a bar on enforcement and the Claimants claim ought to be dismissed.

Irredeemable Breachesof Consumer Credit Act precluding enforcement
Furthermore, there are irredeemable breaches of the Consumer Credit Act 1974. The particulars of the irredeemable breaches are as follows

The Defendant avers that the application form, which he signed, was given to him at a checkout in a Marks & Spencer store. The application did not contain the prescribed terms which is a breach of s62 Consumer Credit Act 1974, and the agreement is improperly executed.

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.

Furthermore and without prejudice to the above paragraphs, the Defendant avers that the termsand 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.

Default under s78 (1) Consumer Credit Act 1974

The Claimant pleads that the Defendant breached his contract. By virtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974 the Claimant is required to serve a default notice in the form prescribed by Consumer Credit Default Enforcement and Termination Notices Regulations 1983(The Regulations). No notice compliant with the Consumer Credit Act was served therefore the Claimant is barred from terminating the agreement and demanding the sums claimed from the Defendant. In respect of the defects within the Default notice,the Defendant relies upon the following particulars of the breaches.

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

The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 & Para 5 of the Regulations. For the avoidance of doubt the regulations require the wording specified by the schedule to be used without variation as laid out at Regulation 2(6) of the Regulations.

The Default notice served did not contain the Office of Fair Trading fact sheet as required by paragraph 10(A) of Schedule 2 of the Regulations.

Accordingly the Default notice is bad and no enforcement is permitted. The Defendant relies of Harrison vs. Link Financial Limited [2011]EWHC B2 Mercantile to support this.

Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs to be summarily assessed on an indemnity basis.


Statement of Truth
I believe that the facts stated in this Defence are true.
Dated this 2nd day of June 20....
To the court and
to the Claimant

	.......................... JUSTIN TIME Defendant
	of [Address],
	at which address he/she will accept service of proceedings.

Edit to suit etc.

Have respaced the actual defence since there were loads of spaces missing, oops.

M1

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

Here is what I hope is my final draft ready for tomorrow. M1 not sure what you mean by a "Headed and a statement of truth"

The Claimants pleaded case is notsufficient for the purposes of CPR 16.The Claimants pleaded case islacking the most basic facts and detail such as following pre actionprotocols, dates of demands made by the Claimant, date of default,date of service of notice of assignment,date of service of defaultnotice and date of agreement, which has been alleged to be breached.This information is fundamental to the Claimants case, yet no detailsare offered or pleaded.


Itis submitted the claimant failed to meet the regulations of PreAction Protocol PD Annex B by failing to send a letter beforeaction.


The claimant has, so far, failed topermit inspection of documents mentioned in the statement of case inaccordance with the defendants CPR 31.14 request and further followup requests for compliance with the request. The defendantrespectfully requests permission to make any amendments to thedefence once disclosure takes place and seeks the award of costsagainst the claimant.


The Claimant is put to strict proof ofthe assignment of the Defendants account and will be required toproduce documents at trial of the same.
No admissions are made inrespect of the assignment.


The Claimant is put to strict proof ofa valid default notice having been served upon the defendant and willbe required to produce documents at trial of the same. No Admissionsare made in respect of the default notice.


The Claimants are put to strict proofof termination and the defendant denies having received same and theclaimant will be required to produce documents at trial of the same.


The Claimants attempts at claiming postjudgement interest are an attempt at unjust enrichment. The Defendantrefers to s74 County Courts Act 1984 and section 2 of the CountyCourts (Interest on Judgement Debts)Order 1991 as a statutory bar onthe Claimants claim to interest. Furthermore no contract entitlingthe Claimant to post judgement interest has been adduced in evidenceand accordingly there is no entitlement to post judgement interest.Interest being owed as claimed is denied.


The defendant admits entering in to anagreement with Marks & Spencer Financial services PLC but deniesthat the Claimant is entitled to the relief claimed or at all on thebasis of numerous breaches of statutory requirements. The details ofwhich are set out below.


Section78 (1) Consumer Credit Act 1974


The Claimant is in breach of itsobligations under the Consumer Credit Act 1974 section 78(1). TheDefendant made a request in writing for a copy of the executed creditagreement. The document provided did not comply with the requirementsof the aforesaid section because

The document was not easilylegible as required by Regulation 2 Consumer Credit CancellationNotices and Copies of Documents Regulations 1983, Accordingly s78 (6)Consumer Credit Act 1974 acts as a bar on enforcement and theClaimants claim ought to be dismissed.

Irredeemable Breachesof Consumer Credit Act precluding enforcement
Furthermore, thereare irredeemable breaches of the Consumer Credit Act 1974. Theparticulars of the irredeemable breaches are as follows

TheDefendant avers that the application form, which he signed, was givento him at a checkout in a Marks & Spencer store. The applicationdid not contain the prescribed terms which is a breach of s62Consumer Credit Act 1974, and the agreement is improperlyexecuted.

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

Furthermore and withoutprejudice to the above paragraphs, the Defendant avers that the termsand conditions produced are not incorporated into the contract. Thereis no reference apparent within the signed application form to anyaccompanying terms and conditions therefore the terms cannot beconsidered to have been embodied by reference as laid out withinsection 61(1)(a) or (b) Consumer Credit Act 1974. S189 clearlydefines the word embody for the purpose of the Act.

Defaultunder s78 (1) Consumer Credit Act 1974

(a) theprovision of the agreement alleged to have been breached TheClaimant pleads that the Defendant breached his contract. By virtueof a breach of contract and pursuant to s87 (1) Consumer Credit Act1974 the Claimant is required to serve a default notice in the formprescribed by Consumer Credit Default Enforcement and TerminationNotices Regulations 1983(The Regulations). No notice compliant withthe Consumer Credit Act was served therefore the Claimant is barredfrom terminating the agreement and demanding the sums claimed fromthe Defendant. In respect of the defects within the Default notice,the Defendant relies upon the following particulars of thebreaches.

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

The Default notice served fails tocontain the statutory wording required by regulation 2 and schedule 2Para 4 & Para 5 of the Regulations. For the avoidance of doubtthe regulations require the wording specified by the schedule to beused without variation as laid out at Regulation 2(6) of theRegulations.

The Default notice served did notcontain the Office of Fair Trading fact sheet as required byparagraph 10(A) of Schedule 2 of the Regulations.

Accordinglythe Default notice is bad and no enforcement is permitted. TheDefendant relies of Harrison vs. Link Financial Limited [2011]EWHC B2 Mercantile to support this.

Therefore,the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs to be summarily assessed on an indemnity basis.

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

M1 you are a gem thank you so much.
G

[mystery1]

Re: Court Summons from Sigma re M & S credit Card

This needs checked to see any facts are correct and applicable to you and any edits from experts is welcome. It also needs headed and a statement of truth etc.

Any comments welcome.












The Claimants pleaded case is not sufficient for the purposes of CPR 16.The Claimants pleaded case is lacking the most basic facts and detail such as following pre action protocols, dates of demands made by the Claimant, date of default, date of service of notice of assignment,date of service of default notice and date of agreement, which has alleged to be breached. This information is fundamental to the Claimants case, yet no details are offered or pleaded.




TheClaimant did not send out a letter before action.


Theclaimant has, so far, failed to permit inspection of documentsmention in the statement of case in accordance with the defendantsCPR 31.14 request and further follow up requests for compliance withthe request. The defendant requests permission to make any amendmentsto the defence once disclosure takes place and seeks the award ofcosts against the defendant.




The Claimant is put to strict proof of the assignment of the Defendants account and will be required to produce documents at trial of the same.
No admissions are made in respect of the assignment.


The Claimant is put to strict proof of a valid default notice having been served upon the defendant and will be required to produce documents at trial of the same. No Admissions are made in respect of the default notice.


TheClaimants are put to strict proof of termination and the defendantdenies having received same and the claimant will be required toproduce documents at trial of the same.


The Claimants attempts at claiming post judgement interest are an attempt at unjust enrichment. The Defendant refers to s74 County Courts Act 1984 and section 2 of the County Courts (Interest on Judgement Debts)Order 1991 as a statutory bar on the Claimants claim to interest.Furthermore no contract entitling the Claimant to post judgement interest has been adduced in evidence and accordingly there is no entitlement to post judgement interest. Interest being owed as claimed is denied.




The defendant admits entering in to an agreement with Marks & Spencer Financial services PLC but denies that the Claimant is entitled to the relief claimed or at all on the basis of numerous breaches of statutory requirements. The details of which are set out below.
















Section78 (1) Consumer Credit Act 1974
The Claimant is in breach of its obligations under the Consumer Credit Act 1974 section 78(1). The Defendant made a request in writing for a copy of the executed credit agreement. The document provided did not comply with the requirements of the aforesaid section because

The document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983, Accordingly s78 (6) Consumer Credit Act 1974 acts as a bar on enforcement and the Claimants claim ought to be dismissed.


IrredeemableBreaches of Consumer Credit Act precluding enforcement


Furthermore, there are irredeemable breaches of the Consumer Credit Act 1974. The particulars of the irredeemable breaches are as follows

The Defendant avers that the application form, which he signed, was given to him at a checkout in a Marks & Spencer store. The application was a single sided sheet of paper, the reverse of which was completely blank, which was given back to the cashier by the Defendant once it was completed. 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.

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.

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.

Default under s87 (1) Consumer Credit Act 1974

(a) the provision of the agreement alleged to have been breached The Claimant pleads that the Defendant breached his contract. By virtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974 the Claimant is required to serve a default notice in the form prescribed by Consumer Credit Default Enforcement and Termination Notices Regulations 1983(The Regulations). No notice compliant with the Consumer Credit Act was served therefore the Claimant is barred from terminating the agreement and demanding the sums claimed from the Defendant. In respect of the defects within the Default notice, the Defendant relies upon the following particulars of the breaches.

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


The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 & Para 5 of the Regulations. For the avoidance of doubt the regulations require the wording specified by the schedule to be used without variation as laid out at Regulation 2(6) of the Regulations.

• 
  The Default notice served did not contain the Office of Fair Trading fact sheet as required by paragraph 10(A) of Schedule 2 of the Regulations.
  
  Accordingly the Default notice is bad and no enforcement is permitted. The Defendant relies of Harrison vs. Link Financial Limited [2011] EWHC B2 Mercantile to support this.

M1

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

I know that Sparkie and refused point blank until they gave in and supplied the S78. In fact they already had my sisnature and were just trying to avoid supplying the invalid agreement.
G

[Sparkie1723]

Re: Court Summons from Sigma re M & S credit Card

morons indeed they spent 2 years telling me they could send me nothing without me providing them with a signature.
G

THey want to copy and paste your signature G ...careful matey.

Sparkie

[gallahad]

Re: Court Summons from Sigma re M & S credit Card

It was £10,500
G