It has now been removed from the defence. Now all i need to know from either yourbank or Caro. Can Supastar1 send this to Cobbetts ?

Good Evening supastar1, Dont worry about certain legal issues-some of this goes over my head. I am hoping all the experianced caggers can just sing from the same hymn sheet and agree what to send to Cobbetts. We are getting to the answer of what to send. Hopefully:)

Hi Yourbank, Does 5b needed to be added back into the defence. womble:D

ok change of plan. I have revised the defence. Can you please check. In the *******County Court Claim no. ******* Between Claimant: ********* -and- Defendant: ********* The Claimant’s Claim arises out of three separate causes of action for accounts which contain separate terms and conditions, the three accounts are regulated by the Consumer Credit Act 1974. Personal Loan account No *******(“the loan”) 1 On ***** 2009 (recorded delivery ref: *********) I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. 2 Having failed to comply with the Defendant’s section 77 request the Claimant issued a Claim for the outstanding balance. However, 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. The CPR request was made on the date *****. The Claimant have not sufficiently detailed the amount outstanding, as it doesn’t state the original amount, payments made and anything that may have been added to it. 3, Since no document containing the Defendant’s signature has been pleaded, therefore, the Defendant puts the Claimant to strict proof that a fully executed agreement complying with section 61(1)(a) exists. 4 The Defendant respectfully requests that the court in respect of the above account to strike out the claim on the basis that the Claimant has not shown legal entitlement to bring such a Claim. Overdraft account No ****** (“the overdraft”) 5 The Defendant disputes the above account as this already the subject of a claim that I have brought against the claimant for the return of charges, that the case has been stayed pending the OFT v banks test case, and the subsequent OFT investigation into the fairness of charges. In light of this you do not believe that this part of the claim should be heard. Joint Overdraft account No ****** (“the overdraft”) 6 The defendant disputes the above account as this was paid up in full on the date of **** 2007. 7 Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the claim. It is 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 Notwithstanding the above points, 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 and include an accurate figure required to remedy any such breach. 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) I *********, believe the above statement to be true and factual to the best of my knowledge

I think it could be over quicker doing it this way. (Do you mean send the defence now?) Cobbetts defence already admit that they cant find the loan agreement.

What we will do is wait for a reply from the cpr request after 7 days. Then no joy i reckon we should send the defence with your added input and see what happens. If we keep bombarding them with requests and amended defence then they might re consider. I think using the n244 form would be the last resort. What do you think Caro?

Hi Caro, Thanks for your input. I cobbled the defence together from my one. In your view due to the lack of response from the Ratwest & Cobbetts the defence should stand as embarrassed. Now the only problem i have with the embarrassed defence is that Cobbetts would take Starbar1 all the way to the court. If Starbar produced a good defence and sends it to Cobbetts then in my view they would know they have a fight on there hands and may decide to discontinue there action. Starbar is re sending the cpr 31.14 request with a covering letter given Cobbetts 7 days to act. Will they or wont they act on this letter ? Do you think Caro that a judge would throw the case out on an embarressed defence ? A good solid reponse to Cobbetts would show them Starbar is no pushover. I should know i am fighting them at the moment and they are playing hardball.

I am glad you has a good Easter. Stay away from the chocolate ! Lol Keep me posted any news from the Ratwest. Womble:)

No Worries. Dont worry about the lack of default notice. Lets see what happens from your 2nd cpr request. I may have said this 100 times already but my wife and me know exactly what you and your husband are going through. Enjoy the rest of your weekend with your family. Womble:)

The Ratwest have made a mistake on that account, It has been paid by your husband. That should not have been put on the poc in my view. It is a shambles of a claim anyway. The default is another mess from them The purpose of the default notice is to let you know what you need to do to put a delinquent account back. They could not be bothered to do that. What they are doing on a large scale is GET A CHARGING ORDER ! This is at any cost.The Ratwest and Cobbetts think joe bloggs will just wave the white flag but hey this site is a real eye opener of what you can defend.

It is amazing on the subject of levy charges with the Ratwest. Here is a booklet of our terms and conditions. Yes but where does it say they can charge a hugh amount charges for unpaid direct debits etc,etc. £38.00 for a un paid direct debit ? where does it state that figure on there bloody terms and conditions. Good thing Starbar it actually states they have lost the loan agreement. In my view they have no grounds to take you to court for the loan.

Thanks alot for your help ive got no money. Are you ok with that Supastar1. If they dont respond then you will need to fill in a n244 form. The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available The form is on this website. I will copy this onto your thread. Good Luck:)

Ok So Starbar1 ignore my admended document on your thread. Send the following via recorded or special delivery. In the *******County Court Claim no. ******* Between Claimant: ********* -and- Defendant: ********* Dear Sir, You have 7 days to reply to the Cpr 31.14 request or will make an application to the court for an Order that you answer my CPR31 request and costs. Yours Faithfully Starbar1 And add the cpr 31.14 letter again. Dear Sir, Re: (Claimant's name) v (Your name) Case No: CPR 31.14 Request On (date) I received the Claim Form in this case issued by you out of the (Name) County Court. I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim. [Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered] Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim: 1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. 2 the assignment* 3 the default notice* 4 the termination notice* You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case. Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party. In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request. If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence. If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing. Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order. I do hope this will not be necessary and look forward to hearing from you. yours faithfully If they dont respond then you will need to fill in a n244 form. The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available The form is on this website. Good Luck:-)

Ok So Starbar1 ignore my admended document on your thread. Send the following via recorded or special delivery. In the *******County Court Claim no. ******* Between Claimant: ********* -and- Defendant: ********* Dear Sir, You have 7 days to reply to the Cpr 31.14 request or will make an application to the court for an Order that you answer my CPR31 request and costs. Yours Faithfully Starbar1 And add the cpr 31.14 letter again. Dear Sir, Re: (Claimant's name) v (Your name) Case No: CPR 31.14 Request On (date) I received the Claim Form in this case issued by you out of the (Name) County Court. I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim. [Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered] Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim: 1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. 2 the assignment* 3 the default notice* 4 the termination notice* You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case. Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party. In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request. If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence. If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing. Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order. I do hope this will not be necessary and look forward to hearing from you. yours faithfully

Ok Starbar1-This is my amended defence for you and hopefully another member from this site can give advice regarding if you can send it to cobbetts or not. In the *******County Court Claim no. ******* Between Claimant: ********* -and- Defendant: ********* The Claimant’s Claim arises out of three separate causes of action for accounts which contain separate terms and conditions, the three accounts are regulated by the Consumer Credit Act 1974. Personal Loan account No *******(“the loan”) 1 On ***** 2009 (recorded delivery ref: *********) I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. 2 Having failed to comply with the Defendant’s section 77 request the Claimant issued a Claim for the outstanding balance. However, 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. 3 Consequently, the Court was precluded from issuing an enforcement order by way of s. 127 (3) of the Consumer Credit Act 1974, since no document containing the Defendant’s signature has been pleaded, therefore, the Defendant puts the Claimant to strict proof that a fully executed agreement complying with section 61(1)(a) exists. 4 The Defendant respectfully requests that the court in respect of the above account on the basis that the Claimant has not shown legal entitlement to bring such a Claim Overdraft account No ****** (“the overdraft”) 5 The Defendant disputes the balance of the above account, as during the period in which the account was operating The Claimant debited £xxxx in charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between the Claimant and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends: a) No such contractual provision exists to allow the Claimant to levy such charges; b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach and are not a genuine pre-estimate of cost incurred by the Claimant; therefore, 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 are 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; and c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful. The Defendant respectfully requests that the court in respect of the above account and allow a full defence to be submitted against the Claimant’s charges, alternatively, the Defendant requests that the court stay proceedings until the outcome of the High court test case. Joint Overdraft account No ****** (“the overdraft”) 6 The defendant disputes the above account as this was paid up in full on the date of **** 2007. 7 Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the claim. It is 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 Notwithstanding the above points, 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 and include an accurate figure required to remedy any such breach. 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) I *********, believe the above statement to be true and factual to the best of my knowledge

Hi Ive Got No Money, Now Supastar1 has fast tracked the claim (good) A Cpr 31.14 was sent around the date of 12th Feb 09. (no reply) Sar Request sent (1st week of Feb) No 6 years worth of paperwork. I have drafted an admended defence for Supastar1 and i will post on Starbar1 thread. Can you please double check if this is correct for Starbar1 to send to Cobbetts and a copy to the court.

The claim is for over £5,000. (you should NOT allocate the claim to the SCT. The disclosure provisions of CPR Pt 31 do not apply to the SCT ) Can you please explain in lamen terms the above sentence. Do you mean draft order directions and section I Starbar has sent off is no good because it is over £5,000 or do you mean that you cant send an amended defence to the solitors because the claim is over £5,000 ? Many Thanks Womble

Thanks guys for your response. I am helping Starbar1 with her case v the Ratwest and the Ratwest have not provided the relevant paperwork. Section I of the AQ form was of the following but i think that Starbar would be better to send a amended defence stating the points that no written agreement has forth coming , unfair levy charges on the overdraft and the joint account was paid off. I have a drafted defence ready for Starbar1 and needed guidance regading what i needed to do. Claim number Between National Westminster Bank - Claimant and me - Defendant Draft Order for Directions The Claimant shall within 14 days of service of this order file and serve the following: Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, Document, contract or deed of assignment Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925. Copies of any statement or other document relied upon If the Claimant fails to comply with this order, the claim will be struck out without further order. The Defendant shall within 14 days thereafter file and serve the following An amended defence sufficiently particularised in response to the documents supplied by the claimant National Westminster Bank -v- me Claim No: N150 Allocation Questionnaire Section I - 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, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts 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. Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer Therefore it stands to reason that this document must be disclosed before this case can progress any further

Bump Bump Bump

Hello Stressed Mum, Have you enjoyed your Easter and any news from the Ratwest ? Womble:)

Main Points on the day. (1)Dress Smartly. (2)Take a friend for morale support. (3)All the paperwork in which you have recieved so far. (4)It would be best to take a in/outgoing sheet for expenditure. (5)List of all your creditors. The outcome will be that you come to an arrangement with the court of a monthly payment scheme. That is why point 4 would be benifical. They cant take what you havent got. A dodgy default notice may be a lost cause with the judge because of the enforced agreement. You could print this off and take with you and state that the Nr have failed to send a proper default notice. The purpose of the default notice (DN) is to let you know what you need to do to put a delinquent account back in order – if you ignore the DN then the creditor will register a default with the credit reference agencies – they may also elect to terminate the agreement if you do not remedy any breach stated within it. That is the main purpose of issuing a DN and it is a requirement of the CCA 1974 that when one is issued by the creditor it must be in the correct format – the format for DN’s is stated in the Consumer Credit (Enforcement. Default and Termination Notices) Regulations 1983. If the creditor issues a DN that doesn’t comply with the regulations then that notice cannot be seen to be valid – it would be unfair on the debtor to allow a creditor to make any enforcement against the debtor on the back of the invalid DN and it would be a clear breach of the CCA 1974. In your case – the creditor has issued a DN that doesn’t comply with the regs so this is a breach of s88 of the CCA 1974 – it is therefore invalid – they proceeded to terminate the account without issuing a compliant DN and this is a breach of s87(1) (a) of the CCA 1974. Once an account/agreement has been terminated it cannot be un-terminated unless both parties to the agreement allow this - this is something I am sure that you won’t want to do. The creditor can terminate an agreement at any time but how they do so will affect their rights at the point of termination – that is the important bit. So where this leaves the creditor is in a situation where they have terminated the agreement between you but have not done so in a manner that would allow them to recover the entire balance owing under the agreement – they can only demand that sum after issuing you with a valid DN. Simply put – if they were to demand the balance from you (because you fell behind with payments) without issuing a DN you would be within your rights to ignore this request – if they then terminate the agreement they effectively lose the right to ever demand the full balance owing under the agreement. A non compliant DN must be viewed as not satisfying the requirements of the act – effectively it is the same as not issuing one in the first place and the net result is the same as above. The most the creditor could do would be to pursue you for the amount stated in the DN – however if that amount was not an accurate representation of the arrears at the time it was issued then you would have grounds to defend against that claim. Are you just waiting for a court date now Starbar.

Hi Starbar, No they cant force to sell your house. Also you could say it would be unfair that your partner should suffer for your money problem . Also negative equity! It looks to me that the judge would probably not allow the Co because of that fact alone. It costs a creditor £1,000 for a charging order on a property. You have a dodgy default notice against you. Print off 42 man response regarding the default notice. You will need to argue the point in court that it was not set out correctly. The judge will see that there is a written agreement on the loan BUT you must persuade that a Co should only be enforced if you fail a payment on the CCJ set by the court. The only problem with a Co is that you cant remortgage, they cant force you to sell. I hope this helps.

Hi Caggers, Its pain in the bum Womble asking another silly question regarding the procedure of an embarrassed defence. Now can someone give directions on the following point.. If you send an embarrassed defence because the claimant has not been helpful with sending any paperwork i.e lack of cpr request and sar request and you reach the AQ stage and you fill in section I ...embarrassed blah blah.. Now the question i am asking is can you put a defence together after the Aq stage and basicaly raise the points that the claimaint has not followed the request for the cpr request, no default notice, unfair charges on the overdraft and send it to the court and send a copy to the solicitors. The bottom line is can you change your defence or add to it after sending off the AQ form to the courts. Any advice as always would be much appreciated. Womble:)

The arguement (just like mine) with the overdraft is unfair charges on them. They made you offers for both the overdrafts and you refused them ? You could use the documentation of these letters to show the judge. Now if you have something in writing that these charges are unfair then that is a good sign. The main points of your defence are (1)The loan has no written agreement. When in court you do not deny or admit the debt unless they can provide the written agreement. Regarding the loan agreement I have Requested to pursuant to section 77(1) Consumer Credit Act 1974 by not forwarding a "true copy" of loan agreement as defined in the Act, or the 1983 regulations, consequently the Claimant was precluded from enforcing the agreement under section 77(4) of the afore said Act. I put your client to strict proof that a fully executed agreement complying with section 61(1) (a) exists. (2)One of your overdrafts has already been paid off. You have the proof that this is the case. (3)The second overdraft has of £**,*** levy charges and there is no contracual provision exists to allow the claimaint to levy such charges. I put the claimant to strict proof that every charge made to the account was valid and lawful. (4)No Default Notice was ever served to your loan or your current account. Simply put – if they were to demand the balance from you (because you fell behind with payments) without issuing a DN you would be within your rights to ignore this request – if they then terminate the agreement they effectively lose the right to ever demand the full balance owing under the agreement. In your case – the creditor has issued no DN that doesn’t comply with the regs so this is a breach of s88 of the CCA 1974 – it is therefore invalid – they proceeded to terminate the account without issuing a compliant DN and this is a breach of s87(1) (a) of the CCA 1974. A non compliant DN must be viewed as not satisfying the requirements of the act – effectively it is the same as not issuing one in the first place and the net result is the same as above. So keep your chin up because you have a very good defence in my eyes. No written agreement, unfair charges, no DN. You will have to be strong and stay focus.

Hi Supastar, I have asked for help regarding the embarrassed defence procedure. Now you filled in section I & the draft direction of the AQ form which you have stated that the claimaint has to provide the relevant paperwork for this case. Cobbetts will read your AQ form and may decide to put the case to one side ? Its a waiting game. If you need a chat just email me. My family and me are exactly in the same boat and i chat with another cag member and it helps. Please dont be afraid and you and your husband must stick together. If you have children please keep it together for there sakes.