Bryan Carter CCJ

[Amethyst]

Re: Bryan Carter CCJ

curls - the attach doesnt seem to have worked (sorry have no idea whats up with the darn attachments tables) could you paste it.

[Curlyben]

Re: Bryan Carter CCJ

Of course

DEFENCE

In the Northampton County Court
Claim number: xxxxxxxxx






Between
XXXXXX- Claimant

and


xxxxxxxxxxx - Defendant


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.

The Credit Agreement
4) On the 17/04/2008 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 ("CCA"). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

5) Lowell Portfolio 1Limited have made no reply to this request.

6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

7). The Claimant is therefore put to strict proof that such agreement exist

Failure to disclose documents relied upon in the Particulars of Claim

Further to the case, on 17/04/08 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 and Default 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 required to give the claimant a legitimate right of action.


9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. 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.

10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.

11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on 21/04/2008

Default Notice
12) 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. They have failed to respond to this request.

13) 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.

14) 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.

15) 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

16) 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.

17) 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."

19) 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.

20) 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."

21) 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

22) 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)


Conclusion
23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

25) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-

35. Division of causes of action.
It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

26) 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.

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

2 In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

29) 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.

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 .....................

ALso:

DEFENCE

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.

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as 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 written agreement referred to, the account number of the agreement, 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.

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.

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.


Further to the case On DATE I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and any default or termination notices, 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 any default notices or termination notice, and a list of charges applied to the account.

The claimant has indicated that they have had substantial difficulties in obtaining this information in time for me to file my defence due to the postal strikes, and has undertaken to provide it as quickly as possible. I therefore respectfully ask that the court grants me permission to amend this defence when I have received the necessary information.


With respect to the claim, it is denied that I am liable to the claimant as stated in the claim, or at all:



Having requested a copy of the credit agreement, which has (thus far) not been produced by the claimant I put the claimant to strict proof that such a document exists, in all respects compliant with the consumer credit 1974. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

The Claimant having failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

The defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.


Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

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.

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974


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 disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph's 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

[ODC]

Re: Bryan Carter CCJ

And with that missive from Curlyben Mr Carter will disappear like snow off a ditch

[chevsa]

Re: Bryan Carter CCJ

Thanks everyone, I'll get that typed and sent tonight.

Cheers.

[chevsa]

Re: Bryan Carter CCJ

Hi folks,

I've edited the defence slightly, sections red and underlined I propose to delete, those in blue bold are to be added. Could you please check it's OK?

Does the defence go to the court only or do I send copies to BC and Nationwide?

Thanks in Advance,

Chevsa

DEFENCE

In the Northampton County Court
Claim number: xxxxxxxxx






Between
XXXXXX- Claimant

and


xxxxxxxxxxx - Defendant


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 claim interest on the alleged debt subject to s69 County Courts Act 1984. I believe this has been superseded by The County Courts (Interest on Judgements) Order 1991 section 2 (3) Interest shall not be payable under this order where the relevant judgement -
(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

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.

The Credit Agreement
4) On the 10/07/2008 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 77(1) of the Consumer Credit Act 1974 ("CCA"). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

5) Nationwide Trust Limited have made no reply to this request.

6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

7). The Claimant is therefore put to strict proof that such agreement exist

Failure to disclose documents relied upon in the Particulars of Claim

Further to the case, on 10/07/08 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 and Default 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 required to give the claimant a legitimate right of action.


9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. 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.

10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.

11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on10/07/2008 and marked as received on 11/07/2008

Default Notice
12) 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. They have failed to respond to this request.

13) 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.

14) 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.

15) 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

16) 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.

17) 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."

19) 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.

20) 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."

21) 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

22) 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)


Conclusion
23) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

24) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

25) The Claimant has also split one cause of action for the purpose of bringing two or more actions in the County Court. This is contrary to s35 County Courts Act 1984 and unlawful:-

35. Division of causes of action.
It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

26) 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.

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

28) In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

29) 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.

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 .....................




DEFENCE

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.

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as 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 written agreement referred to, the account number of the agreement, 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.

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.

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.


Further to the case On 10/07/2008 I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and any default or termination notices, 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 any default notices or termination notice, and a list of charges applied to the account.

The claimant has indicated that they have had substantial difficulties in obtaining this information in time for me to file my defence due to the postal strikes, and has undertaken to provide it as quickly as possible. I therefore respectfully ask that the court grants me permission to amend this defence when I have received the necessary information.


With respect to the claim, it is denied that I am liable to the claimant as stated in the claim, or at all:



Having requested a copy of the credit agreement, which has (thus far) not been produced by the claimant I put the claimant to strict proof that such a document exists, in all respects compliant with the consumer credit 1974. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

The Claimant having failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

The defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.


Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

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.

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974


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 disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph's 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

[chevsa]

Re: Bryan Carter CCJ

Hi Folks,

We've had a reply from Mr C, copies of letters sent and a list of cantacts, amounts paid and f&f offers made.

Should there have been a letter stating the account had been allocated to Mr C for collection?

There has also been a letter from the court acknowledging receipt of our defence. This also states the defence has been forwrded to Mr C who has 28 days from receipt to contact the court.


Cheers,

Chevsa

[ODC]

Re: Bryan Carter CCJ

If Mr C goes true to form he will wash his hands of it. He rarely likes a contest much more prefers the Default Judgement

[Curlyben]

Re: Bryan Carter CCJ

Chevsa, all good.

[chevsa]

Re: Bryan Carter CCJ

Hi Folks,

Sorry it's been a while.

We've just received a N150 from Northhampton for my daughter to complete and send to a local court?????

I don't understand how as a defendant we're going to complete the form - completion date is 26th Sep. Any help would be appreciated.


We received the acknowlegdement of defence from Northampton dated 31 Jul, no further communication from any party until now.

We have not received anything from Nationwide following our reqest for information sent in Jul - other than the cheque had to be made payable to a different company, which we did. They cashed our cheque on 31 Jul.


Cheers,

Chevsa

[Amy]

Re: Bryan Carter CCJ

An N150 is just an allocation questionnaire. See here for how to fill it out.
Legal Beagles

[chevsa]

Re: Bryan Carter CCJ

Hi Folks,


Sorry to appear so stupid but I don't see how we can complete this form! The attached gudiance and the web pages pointed to are no help at all for a lay person.

A - Settlement - We would be happy to settle if they remove the interest and extra charges claimed by Mr C & Co - especially as these have been shown to be against the county court rules! Although how can we settle this if there is no communication between the parties.

B- Location of Trial - My daughter is off work and can't walk more than a few yards, can I request the closest Court?

C _ Pre Action Protocol - What is a 'Pre Action Protocol'? The examples on the hmgov website don't include anything for a defendant in a loan default case.

The example you've pointed to seems to be a 'claimant response', also it may be a different version of the form given the differences in the suggested responses, e.g. Section C has only one part - 'Have you complied with Pre Act Protocol? Section H is for Fees

D - Track - Do I leave this blank?

F - Proposed Directions: What are these? Should we have had something from Mr C?

H - Fee - I assume the claimant pays this fee? What ever it is!


Should we try to contact Nationwide again to settle before any court action?



Once again sorry for being so stupid over this.


Thanks in advance.

Chevsa

[Amy]

Re: Bryan Carter CCJ

Sorry to appear so stupid but I don't see how we can complete this form! The attached gudiance and the web pages pointed to are no help at all for a lay person.

Yes they are, they tell you exactly how to fill out the form. An Allocation Questionnaire form is simply sent when all or part of a claim is defended.

A - Settlement - We would be happy to settle if they remove the interest and extra charges claimed by Mr C & Co - especially as these have been shown to be against the county court rules! Although how can we settle this if there is no communication between the parties.

That is as maybe, but that information is not needed or wanted on an N150.

B- Location of Trial - My daughter is off work and can't walk more than a few yards, can I request the closest Court?

Then your answer here is yes and you state the reasons why.

C _ Pre Action Protocol - What is a 'Pre Action Protocol'? The examples on the hmgov website don't include anything for a defendant in a loan default case.

This is protocols that must have been complied with. For example, not supplying you with your information when you have sent a DPA request if you are filing a claim or in this case you not supplying information they have asked you for. You should answer this accordingly.

The example you've pointed to seems to be a 'claimant response', also it may be a different version of the form given the differences in the suggested responses, e.g. Section C has only one part - 'Have you complied with Pre Act Protocol? Section H is for Fees

Highly likely the courts do change their forms, but largely the answers are the same just maybe in a slightly different order and I said above both a claimant and a defendant are sent an AQ when all or part of a claim is defended.

[quote=chevsa;79825] D - Track - Do I leave this blank?[quote]

No, you tick small claims.

F - Proposed Directions: What are these? Should we have had something from Mr C?

Again, this is exactly as it says.

H - Fee - I assume the claimant pays this fee? What ever it is!

Correct.

Should we try to contact Nationwide again to settle before any court action?

This is always a good idea, but you only have a limited time to file your AQ.

[chevsa]

Re: Bryan Carter CCJ

Thanks for the help folks.

Apologies for going missing, work is getting the better of us just now!


Ok, latest info:

My daughter has received a 'notice of allocation to fast track'. This notice states:

"Each party is to give standard disclosure by list by the 8th December 2008"

"Any requests for inspection or copies are to bemade by the 7th December 2008"

"Statements of witnesses of fact are to be exchanged simultaneously by the 16th January 2008"


Is there a template for the standard disclosure? I had a look but couldn't find one.

I assume we will need to request a copy of the filing from Mr Carter?



We did contact Nationwide again, they just passed us off to Fredericksons. I'm not so keen to talk to them, but we'll give it a go.

The trial date is set for the 4 weeks from 2nd Feb.



Once again any help would be much appreciated.


Many Thanks,

Chevsa

[Curlyben]

Re: Bryan Carter CCJ

Have they actually complied with your CCA and CPR requests as yet ??

[chevsa]

Re: Bryan Carter CCJ

Hi CB,

We got replies from both BC and Nationwide.

BC sent a list of dates and times of phone calls and letters sent, minimal details regarding letters i.e. "FFS offered £xxxx, due 16/07/08".

Nationwide sent a package of data, about 100 pages which is pretty indecipherable to be honest.


We tried writing to Nationwide again but they just passed us off to Fredricksons. I'm writing to them again now to try to avoid court, if the F&F is acceptable.


Cheers,

Chevsa