Lloyds TSB Credit Card - Claim form received

[mcuth]

Hi all

 

At the back end of last week I received a County Court Claim Form with Lloyds as the Claimaint for a credit card debt, issued by MoneyClaim online (issue date 19th Nov, date of service = issue date + 5 days = 24th Nov). I've completed the Acknowledgement of Service online today with an intention to defend the whole claim, so I've got pretty much all the 28 days left to compile my defence.

 

Particulars of claim (verbatim) - no other supporting docs:

1. By an agreement in writing & regulated by the Consumer Credit Act 1974, the Claimants issued to the Defendant a credit-token, Lloyds Asset Card, for the purpose of the Defendant acquiring goods & services on credit.

 

2. Clause 7 of the agreement provided that the Claimants would furnish the Defendant with a monthly statement showing the balance currently due, the minimum payment to be made & the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding & the Defendant should pay interest upon it per month in accordance with clauses 8 & 9 of the agreement.

 

3. In breach of the agreement, the Defendant failed to make payment & on xx/xx/xx the Claimants issued a Default Notice pursuant to section 87(i) of the Consumer Credit Act 1974

 

3. On xx/xx/xx the Claimants did issue a Formal Demand to the Defendant.

 

4. THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT: £**[amount]

(no, I don't know what the ** is for after the £ symbol!)

 

Now, in February, I made a request under s77/78 of the CCA and received a copy of the application form as below (no statements or Ts&Cs). I'm fairly sure that the response was within the deadline (though the reply only contained the photocopy and nothing dated), as I wrote back to Lloyds in March saying that the request still wasn't fulfilled, to refer to the original letter for what's required and that the application wasn't signed by LTSB (in case you can't read it, the application form says "If your application is accepted by our signature above and we send you a card, then this will form the agreement made between you, the Principal Cardholder, and us Lloyds TSB Bank plc, Card Services, PO Box 33, Brighton BN1 4BE, on the terms and the full Conditions set out in the brochure section headed 'Classic, Gold and Platinum Card Conditions - Customer Copy'").

 

These are scanned copies of the doc received from LTSB:

1st page

2nd page

 

So, I reckon my defence is going to go along the following lines:

 

1. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

2.1 The Claimants’ Particulars of Claim disclose no legal cause of action;

 

2.2 The Claimant's Particulars of Claim are insufficiently particularised and do not comply with CPR part 16. In particular, the Defendant wishes to draw the Court’s attention to the following matters:

 

2.2.1 The Particulars of Claim are vague, insufficient and do not disclose an adequate statement of facts relating to or preceeding 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 has calculated any outstanding sums due, or any Default Notice issued required for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim;

 

2.2.2 A copy of the purported written Agreement that the Claimant cites in the Particulars of Claim (paragraph 1) and accompanying Clauses (paragraph 2), and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form;

 

2.2.3 A copy of the purported Default Notice cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), has not been attached to the claim form;

 

2.2.4 A copy of the purported Formal Demand cited in the Particulars of Claim (paragraph 4) has not been attached to the claim form;

 

2.2.5 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form;

 

3. Request under s78(1) Consumer Credit Act (1974)

3.1 Without prejudice to the above and in respect of that which is denied, on xxth xxxxxx 2007, the Defendant made a formal request (“the request”) to the Claimant under section 78(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

3.2 The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

 

3.3 Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

3.4 In response to the request, the Claimant supplied only a copy of an Application Form (unsigned by the Claimant). The Defendant notified the Claimant that the request was not fulfilled and that the Application Form was unsigned by the Claimant, to which no reply was received by the Defendant;

 

3.5 It is drawn to the courts attention that the Claimant has failed to fully comply with the above request and is in default of its obligations under s78(1) Consumer Credit Act (1974).

 

3.6 It is averred that the Claimant has no right of action until such time as this default is remedied and the following are supplied:

 

3.6.1 The true copy of any such executed Agreement, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

3.6.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

3.6.3 A statement of account, signed by or on behalf of the creditor showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

 

3.7 It is denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that such an enforceable Agreement between the parties exists.

 

4. The Default Notice

4.1 It is neither admitted or denied that any Default Notice in the prescribed format as cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), was ever received. The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

4.2 Without prejudice to the above, the Defendant puts 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. The prescribed format for such document is determined by the 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)

 

4.3 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

5. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

6. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules:

 

6.1 A copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

6.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

6.3 A copy of any Default and/or Termination Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

6.4 A copy of any Notice of Assignment (if applicable) giving the Claimant a legitimate right of action;

6.5 A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor;

6.6 A transcript of all transactions, including charges, fees, interest and alleged repayments;

6.7 Any other documents the Claimant seeks to rely on.

 

7. It is further denied that the Claimant is entitled to the sum of £xxxx.xx claimed or any other relief thereon.

Wanted to get your thoughts on the application form, their claim and my proposed Defence - what'dya reckon folks?

 

Cheers

Michael

[pt2537]

Hi Michael

 

well i cant read the agreement, its very very illegible and if this is how it appears in the flesh so to speak its not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

the particulars of claim look as pooched as usual , why cant these organizations get simple things like this right eh?

 

if you need any case law or regulations give us a shout

 

the defence may need a little tweak hear and there but all in all its not too bad

 

i will have a longer look later as im off out soon

 

regards

paul

[NitrousOxide]

Who is the solicitor?

[mcuth]

well i cant read the agreement, its very very illegible and if this is how it appears in the flesh so to speak its not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

Aye, it is more legible on paper - had to try strike a balance between the larger file size and the quality, so try these two links instead:

1st page

2nd page

 

the particulars of claim look as pooched as usual , why cant these organizations get simple things like this right eh?

 

I know - to think of the detail we went into on the bank charges stuff, and these guys just put 4 short paras together! I'm thinking they're just hoping for a default judgement....

 

if you need any case law or regulations give us a shout

 

the defence may need a little tweak hear and there but all in all its not too bad

 

i will have a longer look later as im off out soon

 

Thanks Paul, appreciate it - might need a link to the prescribed terms, though I think I have a copy somewhere lying around

 

Who is the solicitor?

 

Sechiari Clark & Mitchell, LTSB's usual mob....

 

Cheers

Michael

[Curlyben]

This might help

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

[pt2537]

No worries Michael

 

i have all the case law and statutes you will ever need ,

 

just a question, were there any cancellation rights sent with the cca request

 

and where did this agreement get signed by yourself?

 

the quality really sucks to be honest, the copy is not the best ive seen

 

regards

paul

[mcuth]

Thanks Ben

 

i have all the case law and statutes you will ever need ,

 

Cool, thanks Paul - will bear that one in mind

 

just a question, were there any cancellation rights sent with the cca request

 

Nope, I just got the photocopy as shown in the scanned images.

 

and where did this agreement get signed by yourself?

 

Where on the doc, or where was I at the time? In the former, it's under the section "Your declaration and authorisation" (blanked for obvious reasons ), and in the latter I would've been at home....

 

the quality really sucks to be honest, the copy is not the best ive seen

 

Know what you mean - the scan didn't come out brilliantly due to the grey original, but like I say, it is fairly legible on the paper...

 

Cheers

Michael

[Curlyben]

Well as you thought you have a nice unenforceable "agreement"

 

Doesn't comply with SI 1983/1553 where by the terms MUST be within the agreement and NOT as a separate T&C sheet

No cancellation rights.

and to top it off it's unexecuted.

 

That should do you, and I bet there's a ton of charges on it.

[The GodMother]

Hi all

 

A few questions reqarding your defence, Sorry i still dont know how to mini quote.

 

1. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

2.1 The Claimants’ Particulars of Claim disclose no legal cause of action;

 

2.2 The Claimant's Particulars of Claim are insufficiently particularised and do not comply with CPR part 16. In particular, the Defendant wishes to draw the Court’s attention to the following matters:

 

2.2.1 The Particulars of Claim are vague, insufficient and do not disclose an adequate statement of facts relating to or preceeding 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 has calculated any outstanding sums due, or any Default Notice issued required for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim;

 

2.2.2 A copy of the purported written Agreement that the Claimant cites in the Particulars of Claim (paragraph 1) and accompanying Clauses (paragraph 2), and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form;

 

2.2.3 A copy of the purported Default Notice cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), has not been attached to the claim form;

 

2.2.4 A copy of the purported Formal Demand cited in the Particulars of Claim (paragraph 4) has not been attached to the claim form;

 

2.2.5 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form;

 

3. Request under s78(1) Consumer Credit Act (1974)

3.1 Without prejudice to the above and in respect of that which is denied, on xxth xxxxxx 2007, the Defendant made a formal request (“the request”) to the Claimant under section 78(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

3.2 The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

 

3.3 Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

3.4 In response to the request, the Claimant supplied only a copy of an Application Form (unsigned by the Claimant). The Defendant notified the Claimant that the request was not fulfilled and that the Application Form was unsigned by the Claimant, to which no reply was received by the Defendant;

 

3.5 It is drawn to the courts attention that the Claimant has failed to fully comply with the above request and is in default of its obligations under s78(1) Consumer Credit Act (1974).

 

3.6 It is averred that the Claimant has no right of action until such time as this default is remedied and the following are supplied:

 

3.6.1 The true copy of any such executed Agreement, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 l thought you requested this under the 1974 regs and this had to state that you want it under the 1974 regs not the 1983 regs. (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

3.6.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

3.6.3 A statement of account, signed by or on behalf of the creditor showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

 

3.7 It is denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that such an enforceable Agreement between the parties exists.

 

4. The Default Notice

4.1 It is neither admitted or denied that any Default Notice in the prescribed format as cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), was ever received. The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

4.2 Without prejudice to the above, the Defendant puts 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. The prescribed format for such document is determined by the 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)

 

4.3 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

How about putting in that a default notice is not allowed to contain any charges like non payment etc charges.

5. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

6. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules:

 

6.1 A copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 1974 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

6.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

6.3 A copy of any Default and/or Termination Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

6.4 A copy of any Notice of Assignment (if applicable) giving the Claimant a legitimate right of action;

6.5 A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor;

6.6 A transcript of all transactions, including charges, fees, interest and alleged repayments;

6.7 Any other documents the Claimant seeks to rely on.

 

7. It is further denied that the Claimant is entitled to the sum of £xxxx.xx claimed or any other relief thereon.

 

 

Sorry these are just things that l have noticed on other threads and that l have noticed you have not put in.

 

If l am wrong then l am sorry but l thought as the request was made under the 1974 regs then you should be asking for them courts to order under the 1974 regs.

 

Chrissi

[mcuth]

Hi Chrissi

 

3.6.1 The true copy of any such executed Agreement, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 l thought you requested this under the 1974 regs and this had to state that you want it under the 1974 regs not the 1983 regs. (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

I think you've got a little confused - "the prescribed terms" (what must be included in the agreement) are laid out in the Consumer Credit (Agreements) Regulations 1983, but the request for the agreement is made under the controlling Act - the Consumer Credit Act (1974)

 

How about putting in that a default notice is not allowed to contain any charges like non payment etc charges.

 

I think that's covered under the rest of section 4 in the references to validity, content & prescribed terms

 

Cheers

Michael

[mcuth]

Well as you thought you have a nice unenforceable "agreement"

 

Thanks Ben Though I'm still calling it the application form

 

Doesn't comply with SI 1983/1553 where by the terms MUST be within the agreement and NOT as a separate T&C sheet

No cancellation rights.

and to top it off it's unexecuted.

 

Cool

One question though - when you say "No cancellation rights", do you mean that because the application form references cancellation rights, then they should've been sent in response to the s78 request?

 

Cheers

Michael

[Curlyben]

Yep that's the one

Non-compliance with your CCA to boot.

[pt2537]

5 Copies of cancellable unexecuted and executed agreements

(1) Every copy of a cancellable unexecuted agreement delivered or sent to a debtor or hirer under section 62 of the Act

or of a cancellable executed agreement delivered to him under section 63(1) of the Act shall include a box containing

only a notice indicating the right of the debtor or hirer to cancel the agreement, and how and when that right is

exercisable, in the Form numbered in Column 1 in Part II of the Schedule to these Regulations and set out in Column 3

appropriate to the type of agreement referred to in Column 2, instead of any statement of the rights of the debtor or hirer

referred to in Regulations 2(3) and 3(3) of, and [Forms 4 to 6] of Schedule 2 and [Forms 4 and 5] of Schedule 4 to, the

Agreements Regulations.

(2) Every copy of a cancellable executed agreement sent [by an appropriate method] to the debtor or hirer under

section 63(2) of the Act within the seven days following the making of the agreement or under section 63(4) shall

include--

(a) a box containing only a notice indicating the right of the debtor or hirer to cancel the agreement, and how and

when that right is exercisable, in the Form numbered in Column 1 in Part III of the Schedule to these Regulations and

set out in Column 3 appropriate to the type of agreement referred to in Column 2, instead of any statement of the rights

of the debtor or hirer referred to in Regulations 2(3) and 3(3) of, and [Forms 4 to 6] of Schedule 2 and [Forms 4 and 5]

of Schedule 4 to, the Agreements Regulations; and

(b) a Cancellation Form which shall be in the Form specified in Part IV of the Schedule

[(2A) Nothing in this Regulation shall prohibit the inclusion in the cancellable unexecuted or executed agreement of

information about the process or means of providing, communicating or verifying the cancellation by the use of an

electronic communication.]

(3) Where a notice indicating the right of the debtor or hirer to cancel a cancellable unexecuted or executed agreement

does not appear prominently on the first page of any copy of such an agreement delivered or sent to the debtor or hirer

under section 62 or 63 of the Act, the copy shall include on its first page a box containing only the statement in the Form

specified in Part V of the Schedule to these Regulations.

[(4) In the case of--

(a) an unexecuted agreement a copy of which is required to be delivered or sent to a debtor or hirer under section 62

of the Act;

(b) an executed agreement a copy of which is required to be delivered to a debtor or hirer under section 63(1); or

© an executed agreement a copy of which is required to be given to a debtor or hirer under section 63(2) or (4), and

which is not a cancellable agreement within the meaning of the Act and these Regulations but which may be cancelled by

the debtor or hirer in accordance with terms of the agreement conferring upon him similar rights as if the agreement were

such a cancellable agreement, the agreement may be treated for the purposes of this Regulation as if it were a cancellable

agreement within the meaning of the Act and of these Regulations, and Regulation 2 shall then apply as if the agreement

were such a cancellable agreement.]

 

 

NOTES

Amendment

 

Para (1): words "Forms 4 to 6" in square brackets substituted by SI 2004/2619, reg 5(1), (2)(a).

Date in force: 31 May 2005: see SI 2004/2619, reg 1(2).

Para (1): words "Forms 4 and 5" in square brackets substituted by SI 2004/2619, reg 5(1), (2)(a).

Date in force: 31 May 2005: see SI 2004/2619, reg 1(2).

Para (2): words "by an appropriate method" in square brackets substituted by SI 2004/3236, art 6(1), (4)(a).

Date in force: 31 December 2004: see SI 2004/3236, art 1(1).

Para (2): in sub-para (a) words "Forms 4 to 6" in square brackets substituted by SI 2004/2619, reg 5(1), (2)(b).

Date in force: 31 May 2005: see SI 2004/2619, reg 1(2).

Para (2): in sub-para (a) words "Forms 4 and 5" in square brackets substituted by SI 2004/2619, reg 5(1), (2)(b).

Date in force: 31 May 2005: see SI 2004/2619, reg 1(2).

Para (2A): inserted by SI 2004/3236, art 6(1), (4)(b).

Date in force: 31 December 2004: see SI 2004/3236, art 1(1).

 

Para (4): inserted by SI 1984/1108, reg 2(b).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/6 Notices of cancellation rights sent by post under section 64(1)(b) or (2) of the Act

6 Notices of cancellation rights sent by post under section 64(1)(b) or (2) of the Act

Any notice which indicates the right of the debtor or hirer to cancel a cancellable agreement, and how and when that right

is exercisable, and which is sent [by an appropriate method] to the debtor or hirer under section 64(1)(b) of the Act within

the seven days following the making of the agreement or under section 64(2), shall be--

(a) in the Form numbered in Column 1 in Part VI of the Schedule to these Regulations and set out in Column 3

appropriate to the type of agreement referred to in Column 2; and

(b) on a single sheet of paper, and

(i) if the notice is entirely on one side of the paper, the Cancellation Form forming part of that notice shall be on

that side; or

(ii) if the notice is continued on the back of the paper, the symbol and word "/over" shall be shown below that

part of the text which appears on the front of the paper.

NOTES

Amendment

Words "by an appropriate method" in square brackets substituted by SI 2004/3236, art 6(1), (5).

Date in force: 31 December 2004: see SI 2004/3236, art 1(1).

See Further

See further, in relation to the disapplication of para (b) above to a notice which is transmitted in the form of an electronic

communication in accordance with the Consumer Credit Act 1974, s 176A: the Consumer Credit (Cancellation Notices

and Copies of Documents) Regulations 1983, SI 1983/1557, reg 6A (as inserted by SI 2004/3236, art 6(1), (6)).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/[6A]

[6A]

[Regulation 6(b) shall not apply to a notice which is transmitted in the form of an electronic communication in

accordance with section 176A of the Act.]

NOTES

Amendment

Inserted by SI 2004/3236, art 6(1), (6).

Date in force: 31 December 2004: see SI 2004/3236, art 1(1).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/[6B]

 

[6B]

[Nothing in this Regulation shall prohibit the inclusion in a notice of information about the process or means of

providing, communicating or verifying the cancellation by the use of an electronic communication.]

NOTES

Amendment

Inserted by SI 2004/3236, art 6(1), (6).

Date in force: 31 December 2004: see SI 2004/3236, art 1(1).

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/7 Copies of agreements or security instruments where the agreement or security instrument

has been varied

7 Copies of agreements or security instruments where the agreement or security instrument has been varied

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed

agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating

to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security

instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either--

(a) an easily legible copy of any document varying the security; or

(b) an easily legible statement of the terms of the security as varied.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/8 Copies of credit-token agreements where the agreement contains a power of variation

 

 

 

this is taken from the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

regards

paul

[mcuth]

Beautiful - thanks Ben & Paul

 

I think I might let them shoot themselves in the feet with the non-compliance with the s78 request and the document disclosure bit first - then that lot'll do nicely if they have the mettle for a battle

 

Cheers

Michael

[mcuth]

I think I'd like to get my defence in nice & early next week. So, before I head off for the weekend, has anyone got any extra comments on my proposed defence (amended slightly below), please?:

 

1. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

2.1 The Claimants’ Particulars of Claim disclose no legal cause of action;

 

2.2 The Claimant's Particulars of Claim are insufficiently particularised and do not comply with CPR part 16. In particular, the Defendant wishes to draw the Court’s attention to the following matters:

2.2.1 The Particulars of Claim are vague, insufficient and do not disclose an adequate statement of facts relating to or preceeding 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 has calculated any outstanding sums due, or any Default Notice issued required for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim;

 

2.2.2 A copy of the purported written Agreement that the Claimant cites in the Particulars of Claim (paragraph 1) and accompanying Clauses (paragraph 2), and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form;

 

2.2.3 A copy of the purported Default Notice cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), has not been attached to the claim form;

 

2.2.4 A copy of the purported Formal Demand cited in the Particulars of Claim (paragraph 4) has not been attached to the claim form;

 

2.2.5 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form;

 

3. Request under s78(1) Consumer Credit Act (1974)

3.1 Without prejudice to the above and in respect of that which is denied, on xx xxxxxx 2007, the Defendant made a formal request (“the request”) to the Claimant under section 78(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

3.2 The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

 

3.3 Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

3.4 In response to the request, the Claimant supplied only a copy of an Application Form (unsigned by the Claimant). The Defendant notified the Claimant that the request was not fulfilled and that the Application Form was unsigned by the Claimant, to which no reply was received by the Defendant;

 

3.5 It is drawn to the Court’s attention that the Claimant has failed to fully comply with the request and is in default of its obligations under s78(1) Consumer Credit Act (1974);

 

3.6 It is averred that the Claimant has no right of action until such time as this default is remedied and the following are supplied:

 

3.6.1 The true copy of any such executed Agreement, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

3.6.2 A copy of any document referred to in, and in force at the time of, any such executed Agreement;

 

3.6.3 A statement of account, signed by or on behalf of the creditor showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

 

3.7 It is denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that such an enforceable Agreement between the parties exists.

 

4. The Default Notice

4.1 It is neither admitted or denied that any Default Notice in the prescribed format as cited in the Particulars of Claim (paragraph 3), and as required by s87(1) Consumer Credit Act (1974), was ever received. The Defendant therefore puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

4.2 Without prejudice to the above, the Defendant puts 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. The prescribed format for such document is determined by the 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)

 

4.3 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

5. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

6. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules:

 

6.1 A copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

6.2 A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

6.3 A copy of any Default and/or Termination Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

 

6.4 A copy of any Notice of Assignment (if applicable) giving the Claimant a legitimate right of action;

 

6.5 A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the debtor to the creditor, and

- the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor;

 

6.6 A transcript of all transactions, including charges, fees, interest and alleged repayments;

 

6.7 A full breakdown of how the sum claimed has been calculated;

 

6.8 Any other documents the Claimant seeks to rely on.

 

7. It is further denied that the Claimant is entitled to the sum of £xxxx.xx claimed or any other relief thereon.

 

TIA

 

Cheers

Michael

[pt2537]

hi michael,

 

sorry but been up to my eyes in it

 

just had a quick look over the defence and it looks ok, considering the circumstances, as until they disclose the documents pursuant to the CPR theres little more you can say

 

have you given any though to the Wilson judgment as no prescribed terms = no court order and Wilson confirms this

 

regards

paul

[mcuth]

Hi Paul

 

Thanks for having a look over

 

have you given any though to the Wilson judgment as no prescribed terms = no court order and Wilson confirms this

 

Well yeah - but since they haven't sent an agreement, I was figuring I'd save that for amending my defence if they do send one. Alternatively, if they insist that the application form is the agreement, then that can be ripped apart - missing prescribed terms & unexecuted - isn't there also some case law that asserts an application form can't be the agreement?

 

Cheers

Michael

[pt2537]

Hi Paul

 

Thanks for having a look over

 

 

 

Well yeah - but since they haven't sent an agreement, I was figuring I'd save that for amending my defence if they do send one. Alternatively, if they insist that the application form is the agreement, then that can be ripped apart - missing prescribed terms & unexecuted - isn't there also some case law that asserts an application form can't be the agreement?

 

Cheers

Michael

 

Hi Michael

 

i can see the logic in that mate

 

im not sure of case law on the subject of application forms not being agreements, i will have to take a look and see,unless youve any ideas on the case name?

 

regards

paul

[mcuth]

Hi Paul

 

i can see the logic in that mate

 

Oh dear, that's worrying - it's Monday and I'm making sense?

 

im not sure of case law on the subject of application forms not being agreements, i will have to take a look and see,unless youve any ideas on the case name?

 

You know, I can't remember the case name - but I'm sure I've seen it bandied about before....of course, I may just be having one of my "moments"...

 

Cheers

Michael

[pt2537]

 

 

 

You know, I can't remember the case name

 

 

me neither, and i cant say ive heard such either, i will need to do some digging on this

[mcuth]

me neither, and i cant say ive heard such either, i will need to do some digging on this

 

Don't dig too hard mate - it's probably just me....

 

Cheers

Michael

[mcuth]

Well, defence sent off yesterday - had to send it by post since MCOL couldn't handle the number of characters/lines!

 

MCOL shows it being received & processed today

Tick tock, tick tock....

 

Cheers

Michael

[pt2537]

good luck Mate

 

not that you will need it of course;)

[mcuth]

Well, have heard nowt at all from SC&M since filing my Defence Did get a letter from Northampton CC though (dated 5th December) saying that the Defence was being served on the Claimant and that it was up to the Claimant to advise if they wanted to proceed within 28 days (after that, the claim would be stayed and the Claimant would need to apply to the Court to lift the stay).

 

Since then, have received a notice of transfer of proceedings to Swindon CC (my local CC) and an N150 AQ to fill in & return by 8th Jan. Not sure if this means that SC&M have told the court they wish to proceed or not?

 

Also, here's my proposed content for the N150 - whaddya think (info obtained from other posts & advice on the forum)?

 

Section A - Settlement:

No

 

Section B - Location:

Yes - The Defendant respectfully requests that the case is heard at Swindon County Court as he is a Litigant in Person

 

Section C - Pre-action protocols:

Part 2 - No. Reason (attached sheet): The Claimant has been in default of a formal & legitimate request made under s.78(1) Consumer Credit Act (1974) since 23rd March 2007. The Defendant has no information to supply, and the burden of proof is on the Claimant to supply documents supporting their claim as per CPR part 16, which they have not done.

 

Section D - Case management information:

What amount of the claim is in dispute: £6162.74

 

Have you made any application(s) in this claim? No

 

Witnesses: Me - witness of fact

 

Experts: No

 

Track: Fast Track (based on amount only)

 

Section E - Trial or final hearing:

How long do you estimate the trial or final hearing will take: 1hr

 

Section F - Proposed directions:

Have you attached a list of directions? Yes

Have they been agreed? No

 

Section G - Costs:

Estimate of costs incurred to date: (need to calculate this)

Estimate of overall costs: (need to calculate this)

 

Section H - Other Information:

Have you attached docs? No

Do you inted to make any applications in the immediate future? No

 

Any other information:

If the Court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order.

 

The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, the Defendant is at a disadvantage and is unable to serve a complete Defence in response to the documents requested (further to that filed on 5th December 2007). Failure of the Claimant to supply the requested documentation will inhibit the Court's ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

Should the Claimant not have the documentation required to progress this case, the Defendant would respectfully suggest that there is no case to answer.

 

Therefore, it stands to reason that this documentation must be disclosed before the case can progress any further.

 

Draft order:

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement, and all documents referred to within it, which complies with Consumer Credit Act (1974) and all subsequent regulations;
  
• A copy of any Default Notice issued, compliant with s.87(1) Consumer Credit Act (1974) and Consumer Credit (Enforcement, Default and Termination Notices) Regulations (1983) (SI 1983/1561) as amended;
  
• Any document, contract or deed of assignment (if applicable);
  
• Any notice of assignment (if applicable), with proof of service of the same compliant with s.196 of the Law of Property Act (1925);
  
• A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the Defendant to the Claimant, and

- the amounts and due dates of any payments which, if the Defendant does not draw further on the account, will later become payable under the agreement by the Defendant to the Claimant;

• A transcript of all transactions, including charges, fees, interest and alleged repayments;
  
• A full breakdown of how the sum claimed has been calculated;
  
• Copies of any statement or other document that the Claimant seeks to rely upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

2. The Defendant shall within 14 days of service thereafter file and serve the following:

• An amended Defence sufficiently particularised in response to the documents supplied by the Claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

Should I be making an application to strike out the case based on my request in the Defence, or is it enough that I made that request in the Defence?

 

Cheers

Michael

[car2403]

Hi Micheal et al,

 

That AQ and Draft Directions look very familiar, don't they Paul? Good to see they are being put to use... Look fine to me, but I'd be requesting allocation to the small claims track (even though you may not get it) as it could limit your chances of having to pay their costs if (not when!) you lose.

 

As for the Application to strike out, IMHO it would be a waste of time and money as the Court is unlikely to strike out the claim - applying now will probably result in a short stay, at the most, to allow them to particularise properly, which will only extend the time it takes to sort this out. Of course, not applying to the Court means they don't have the option of striking the claim out, so it's your call. If you have a spare £40 lying around (send it to me, please!) and aren't bothered about it dragging on for a few months more than it should, go for it I'd say!

 

Good luck...