Court Summons from Sigma re M & S credit Card

[FlamingParrot]

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

Yes it is over £10k

Being over the small claims threshold, you may be able to get legal representation on a no-win-no-fee basis. You may want to take a look at this post

You've got nothing to lose. :biggrin1:

Plan B successfully defended a claim for a store card turned credit card -> http://www.bbc.co.uk/news/business-17670803 :bounce:

BBC News link

[gallahad]

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

Thanks FP but unfortunately that link fails also I only have 5 days to get my defence in now so doubt there is time to explore the NWNF route.
G

[PlanB]

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

Thanks FP but unfortunately that link fails also I only have 5 days to get my defence in now so doubt there is time to explore the NWNF route.
G

There are times when you can request an extension to file your Defence but don't count on it you'll need to have a good reason. In my case I put in a rubbish Defence and then once I got a lawyer on board he filed a superb Amended Defence which was responsible for winning my case :clap2: There's no harm in picking up the phone to find out what your odds are of winning is there?

[FlamingParrot]

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

There are times when you can request an extension to file your Defence but don't count on it. In my case I put in a rubbish Defence and then once I got a lawyer on board he filed a superb Amended Defence which was respnsible for winning my case :clap2: There's no harm in picking up the phone to find out what your odds are of winning is there?

Indeed you've got nothing to lose, a quick phone call or email shouldn't take that long! http://www.watsonssolicitors.co.uk/contact.html

Thanks FP but unfortunately that link fails also I only have 5 days to get my defence in now so doubt there is time to explore the NWNF route.
G

The links work for me! http://www.legalbeagles.info/forums/...196#post310196

[gallahad]

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

Thanks FP got it this time.
G

[pt2537]

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

Firstly, did the Claimant send any letter before action?

Secondly, has there been any section 78 (1) Consumer Credit Act 1974 request? if so has it been complied with? i assume there was an agreement originally as otherwise the creditor cannot comply, on the basis it cannot produce what never existed, of course in such circumstances it would be unenforceable in any event.

Can you confirm please has 56 days now passed since the claim was filed?

If not then you can of course seek an extension per CPR rule 15.5 to extend the time for the Defence.

An application has risks on costs if it isnt appropriate to apply or if the application is not done correctly, so its important to ensure these steps are done right.

[gallahad]

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

Hi PT, I received no LBA
Yes the CCA 78 request was complied with back in 2009 but the copy of the agreement they sent was an application form which did not contain the prescribed terms and included a separate 2 page terms and conditions which i know were not presented to me at the time is signed the application (agreement)

53 days have now expired as the claim was filed on 29th Nov. i already have an agreed extension until 29th January but they have still not complied with my CPR 31.14 request.

Thanks G

[pt2537]

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

Hi PT, I received no LBA
Yes the CCA 78 request was complied with back in 2009 but the copy of the agreement they sent was an application form which did not contain the prescribed terms and included a separate 2 page terms and conditions which i know were not presented to me at the time is signed the application (agreement)

53 days have now expired as the claim was filed on 29th Nov. i already have an agreed extension until 29th January but they have still not complied with my CPR 31.14 request.

Thanks G

Theres no easy way to put this, but there has been an unacceptable delay here, which Judges generally have little sympathy for the litigant in person.

The rules clearly say 7 days for allowing inspection

If they havent allowed inspection and the document is central to your ability to plead a Defence, then an application is the route i would take. However youve backed yourself into a corner now and it will be tricky to get out of it.

Im not sure what the best option is here, its pretty late now and i have a lot to do on a matter which is in for an appeal in two days, so im not sure what i can do to assist

[gallahad]

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

Thanks for looking PT good luck with the appeal. Is no LBA part of a defence.
G

[mystery1]

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

Paul says it affects costs so that means no i'd say.

I'd have made the application as i said earlier but although still in time to do so it has become tricky as it takes the court ages to process it which could complicate matters.

Having said that it appears you know enough of the case that you could muster a pretty solid defence anyway.

One major point could be what you did get when you opened the account and when. Depending on what you got this could be an even bigger stick to beat them with than those sticks already identified.

M1

[gallahad]

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

MyDefence.


1.M& S failed to supply a copy of an executed agreement(application form) that contained the prescribed terms as requiredunder CCA act 1974 section S. 127 (3), made under a statutoryCCA S.78 request.


2.M& S stated that a set of terms and conditions applicable to theagreement (application form) were supplied at the time the agreementwas signed, I deny that this happened as I have a very clearrecollection of the day and the process. In addition the signed copyof the agreement (application form) they did supply included thewording “ Yourright to cancel Once you have signed this agreement, you will have,for a short time a right to cancel. Exact details of how and when youcan do this will be sent to you by post by the creditor. “


3.The default notice served under section 87(1) of the consumer creditact 1974 failed to meet meet the requirements of the act stipulating14 days to remedy the breach.


4.The claimant failed to meet the requirements of Pre Action ProtocolPD Annex B by failing to send a letter before action.


5.The claimant failed to respond to my request for documents under aCPR 31.14 mentioned in their POC having been given an extension of 28days to do so.


6.The small print presented on the signed application form (agreement)is not clearly legible.


7.I would like to request the court allow me the opportunity to amendmy defence should the claimant eventually meet my CPR 31.14 request.

Any comments or suggestions would be most welcome.
G

[pt2537]

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

MyDefence.


1.M& S failed to supply a copy of an executed agreement(application form) that contained the prescribed terms as requiredunder CCA act 1974 section S. 127 (3), made under a statutoryCCA S.78 request.


2.M& S stated that a set of terms and conditions applicable to theagreement (application form) were supplied at the time the agreementwas signed, I deny that this happened as I have a very clearrecollection of the day and the process. In addition the signed copyof the agreement (application form) they did supply included thewording “ Yourright to cancel Once you have signed this agreement, you will have,for a short time a right to cancel. Exact details of how and when youcan do this will be sent to you by post by the creditor. “


3.The default notice served under section 87(1) of the consumer creditact 1974 failed to meet meet the requirements of the act stipulating14 days to remedy the breach.


4.The claimant failed to meet the requirements of Pre Action ProtocolPD Annex B by failing to send a letter before action.


5.The claimant failed to respond to my request for documents under aCPR 31.14 mentioned in their POC having been given an extension of 28days to do so.


6.The small print presented on the signed application form (agreement)is not clearly legible.


7.I would like to request the court allow me the opportunity to amendmy defence should the claimant eventually meet my CPR 31.14 request.

Any comments or suggestions would be most welcome.
G

........

[gallahad]

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

Thanks PT but I do not have access to that forum and it will not allow me to view
G

[pt2537]

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

• Unless expressly stated, references to paragraph numbers herein are references to those paragraphs set out within the Claimants Particulars of Claim.
• 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 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.
• In respect of paragraph 1, the Defendant can make no admission as to the business which the Claimant undertakes as this is outwith the Defendants own knowledge. 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.
  3.1 Furthermore, the Defendant notes that the Claimant did not hold a valid consumer Credit licence contrary to the Consumer Credit Act 1974 when the purported assignment took place. The Defendant avers that the Claimant committed a criminal offence pursuant to s39 Consumer Credit Act 1974 by virtue of unlicensed trading. For the avoidance of doubt the Claimant did not obtain a licence until 26th March 2008 under licence number 0614989 as set out on the Office of Fair Trading’s Consumer Credit licence register.
  
  3.2 In the event that the Claimant seeks to rely upon an agent as a Consumer Credit Licence holder the Defendant will refer to the case of Hicks v Walker and Frank Reynolds Ltd -[1999] GCCR 721 as the authority which sets out this is not permissible where the principal company does not hold a valid Licence to conduct the activities which require such a licence.
  
• In respect of paragraph 2, the contents are noted. No admissions are made in respect of the assignment. It is denied however that the Defendant entered into an agreement dated 4th June 1996.
• Paragraph 3 is denied in its entirety no such agreement dated XXXX has been made. The Defendant has not signed any such document dated XXXXX and accordingly the Defendant denies the allegation within paragraph 3. The Claimant is put to strict proof of paragraph 3.
• Paragraph 4 is neither admitted nor denied, the Claimant is put to strict proof.
• In respect of paragraph 5, the Defendant puts the Claimant to strict proof as to the collection agents demands both written and verbal.
• Paragraph 6 is denied in its entirety. The Claimant is put to strict proof of the entitlement to seek such interest at the rate of 17%. In addition the Defendant refers to Para 14-16 below which bar the Claimant from such entitlements.
• Paragraph 7 is denied; the Claimants attempts at claiming post judgment 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 Judgment Debts) Order 1991 as a statutory bar on the Claimants claim to interest. Furthermore no contract entitling the Claimant to post judgment interest has been adduced in evidence and accordingly there is no entitlement to post judgment interest.
• In respect of paragraph 8 the Defendant repeats paragraph 8 of this Defence above. Furthermore, and notwithstanding matters previously pleaded, the Defendant 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.

Section 78 (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
  11.1 the document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983
  
  11.2 no copy of current Terms were produced
  
  11.3 no statement of account was adduced.
  
• Accordingly s78 (6) Consumer Credit Act 1974 acts as a bar on enforcement and per HFO services Limited vs Kirit Patel, Claim number 8QC52414, before His Honor Judge Platts, the Claimants claim ought to be dismissed.

Irredeemable Breaches 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
  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.

Notice of sums in arrears.

• Pursuant to s86 (A-C) Consumer Credit Act 1974 there is a duty to serve notice of sums in arrears. The Claimant has not served such notices nor has it pleaded such, therefore the Defendant avers that by virtue of s86D Consumer Credit Act 1974 the Claimant cannot enforce the agreement as matters stand. For the avoidance of doubt the notice referred to within this paragraph are in addition to the Default notice not in place of.
• Furthermore no OFT arrears sheet as required by s86(c)(3) Consumer Credit Act 1974 has been served.
• By virtue of the failures outlined in Para 14 & 15 above the Claimant is not entitled pursuant to s86D (4) Consumer Credit Act 1974 to levy any interest from the point of the failure to serve the aforesaid notice of sums in arrears nor is the Claimant entitled to levy any default charges during the period of non compliance.

Default under s87 (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:
  17.1 The Default notice served fails to state adequately the name and address of the Creditor, thus breaches regulation 2 and schedule 2 Para 2(1) of the Regulations
  
  17.2 The Default notice served fails to contain an adequate description of the agreement sufficient to identify it as the account number specified is materially wrong. Furthermore there is no reference to the type of agreement concerned within the body of the notice. The account number stated is inherently wrong. This is a breach regulation 2(2) and schedule 2 Para 1 of the Regulations.
  
  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. Furthermore the notice demands the full balance outstanding, this is not permitted as the service and expiry of a Default notice in accordance with s87 (1) Consumer Credit Act 1974 is required before a creditor can become entitled to demand accelerated payments.
  
  17.4 Furthermore, the Default notice provides that the Debtor should make a “down payment of 40% of the balance”. Schedule 2 of the Regulations do not allow for such an ambiguous statement to be made in respect of the action required to be taken under paragraph 3(c) of schedule 2 of the Regulations.
  
  
  17.5 The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 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.
  
  17.6 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.
  
  17.7 The Default notice fails to adequately state the balance of the account due to the inclusion of interest and default charges within the outstanding balance and which the Claimant is not entitled to charge due to the matters pleaded within paragraph 14,15 & 16 above.
  
• 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.

Penalty Charges for breach of contract

• The Defendant avers that the sums claimed by the Claimant include sums that are not recoverable. These sums referred to relate to late payment penalty charges and the Defendant will seek to exercise his right of set off against any sum found due and payable by the Court. The Defendant is unable to plead the quantum of such charges at this stage and shall require full disclosure of the statements over the term of the agreement.
• In respect of the said late payment charges and interest, the Defendant denies the Claimant’s entitlement to recover the same.

PARTICULARS OF DISPUTE AS TO ENTITLEMENT OF RECOVERY

OF CHARGES AND INTEREST LEVIED BY BARCLAYS BANK PLC T/A BARCLAYCARD

• The Claimant is not entitled to recover the said charges and interest because: -

(a) The said charges are irrecoverable as they amount to penalties in law as they are: -
(i) Punitive in nature by reason of their being levied when an alleged breach of contract occurs;
(ii) Not a genuine pre-estimate of cost incurred by Barclays Bank Plc T/A Barclaycard;
(iii) Excessive by reference to the actual loss incurred by the Defendant as a result of the alleged breaches of contract;
(iv) Extravagant and unconscionable in amount by reference to the greatest actual loss that could conceivably be proved to have followed the breach; and
(v) Existing to act as a means of menacing the Defendant and other account holders into contractual compliance.
(b) Insofar as the charges and interest levied are argued to be charges for services rendered by Barclays Bank Plc T/A Barclaycard, the Defendant avers that the said charges and interest were not levied for any service of contractual or other benefit to the Defendant; and
(c) In relation to the account, the Defendant deals with Barclays Bank Plc T/A Barclaycard as a consumer and, therefore, the contractual terms under which the Claimant may seek to justify the imposition of the said charges and interest are contractual terms which are subject to the Unfair Terms in Consumer Contracts Regulations 1999 (the 1999 Regulations) and the Defendant claims that the said terms are unfair within the meaning of Regulation 5(1) because: -
(i) The terms are the standard terms and conditions of Barclays Bank Plc T/A Barclaycard;
(ii) The bargaining position of the parties is significantly unbalanced in the favour of Barclays Bank Plc T/A Barclaycard;
(iii) The Barclays Bank Plc T/A Barclaycard is one of a limited number of banking providers who exercise a collective dominance in the market-place;
(iv) The charges levied by Barclays Bank Plc T/A Barclaycard were similar in nature and magnitude to charges levied by other banking institutions, meaning that individuals in the position of the Defendant would have had no real choice as between credit card providers and would have been forced to acquiesce to Barclays Bank Plc T/A Barclaycard charges;
(v) There is no opportunity for the Defendant to negotiate as to the terms of the contract and no opportunity to assess the fairness of the charges at the time of entering into the contract;
(vi) In any event, the charges were of peripheral interest to individuals such as the Defendant and were not likely to have influenced the Defendant in entering into the contract for the account;
(vii) The Charges are excessive and exorbitant by reference to the actual cost to Barclays Bank Plc T/A Barclaycard of the performance of the tasks for which it levies the charges;
(viii) The Defendant received no benefit or service in return for the imposition for the charges and interest.

• In the premises, the Defendant avers that the terms under which the charges were levied were unfair and thus not binding upon the Defendant by virtue of Regulation 8 of the 1999 Regulations
• Without prejudice to the foregoing, and in light of the difficulty that the Defendant suffers in knowing the Claimant’s case due to the Claimant’s failure to properly plead the same, the Defendant avers that: -

(a) Insofar as the said charges and interest form any part of the sum claimed, the Defendant denies that the Claimant is entitled to recover the same; and(b) Insofar as the said charges and interest do not form part of the sum claimed in the Claim, the Defendant shall aver that the said sum should be set off against the sum found to be due to the Claimant in respect of the Claimants Claim.
Conclusion

• Accordingly, the Defendant avers that
  24.1 The Claimant has failed to show standing in this matter
  
  24.2 The Claimant has not complied with s61,62, 78, 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.
  
  24.3 The documents disclosed as the agreement are not easily legible and therefore it is unsafe to grant judgment on the back of these documents
  
  24.4 The agreement is irredeemably unenforceable and thus pursuant to s127 (3) the Claim should be dismissed and a declaration to this effect made by the Court pursuant to s142 (1) Consumer Credit Act 1974.
  
  
• Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs to be summarily assessed on an indemnity basis.

The above is a defence used in a successful defence.

This must NOT BE COPIED and used and is for information purposes only.

If you use this then you do so at your own risk as it is pleaded purely for the case t hat it was used in and may not fit your own case

[pt2537]

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

Thats what the thread said on the other forum