HFC-No Agreement? - Amended defence help please **WON**

[pt2537]

Hi Rob

 

Well, personally while i feel you could look at a counterclaim do you feel confident taking this action? this is a question youve gotta ask yourself and feel happy with.

 

personally i wouldnt unless your 100% on this

 

now onto the defence, you will need to use a N244 i believe to amend your defence and i believe there is a fee to pay too

 

right i think the best action would be the invalid default not giving the claimant the right to the action, the failure to supply a valid credit agreement, this is backed by case law and prohibits the court from enforcing an unenforceable agreement

 

and the penalty charges contained within the default as a final nail in the coffin

 

regards

paul

[pt2537]

oh and to counter claim costs money too, you would have to pay a fee i believe

[robcag]

Hi Rob

 

Well, personally while i feel you could look at a counterclaim do you feel confident taking this action? this is a question youve gotta ask yourself and feel happy with.

 

personally i wouldnt unless your 100% on this

I think at this stage it might be easier to put the counterclaim on the backburner, maybe I could instigate this at a later date after I've cut my teeth!

 

now onto the defence, you will need to use a N244 i believe to amend your defence and i believe there is a fee to pay too

OK, I have an N244 ready. I'm unemployed ATM and in receipt of income based JSA so I might be exempt from the fee (I already have a EX160 from the court ready to fill in).

 

right i think the best action would be the invalid default not giving the claimant the right to the action, the failure to supply a valid credit agreement, this is backed by case law and prohibits the court from enforcing an unenforceable agreement

Sounds good to me Paul. I've been working on the defence today since your previous messages starting with another defence you helped someone with. I've been adapting it to hopefully fit my requirements, at the same time as trying to take it all in and make sure I understand it. I will carry on with this task tomorrow and get it posted up here.

 

and the penalty charges contained within the default as a final nail in the coffin

Good!

 

regards

paul

 

 

oh and to counter claim costs money too, you would have to pay a fee i believe

I'd like to do a counterclaim, but see my answer above. Maybe if I have time I could add one, but I wouldn't want to upset the Judge by giving out the wrong message!

Perhaps I should save it for another day?

 

Thanks again

Rob

[pt2537]

I'd like to do a counterclaim, but see my answer above. Maybe if I have time I could add one, but I wouldn't want to upset the Judge by giving out the wrong message!

Perhaps I should save it for another day?

 

Thanks again

Rob

 

right , the easiest thing here for me to do is ask one question, im not trying to talk you out of a counter claim but what would you base you arguement on in the counterclaim?

 

regards

paul

[pt2537]

Also Rob, is there any chance you could post the Particulars of Claim so i can see what they are claiming

[robcag]

right , the easiest thing here for me to do is ask one question, im not trying to talk you out of a counter claim but what would you base you arguement on in the counterclaim?

 

regards

paul

Briefly, from what I seem to recall reading in various threads:

 

If no agreement exists/is enforceable which contains my expressed/agreed permission to process my data and to pass information on to CRAs etc. then the bank/OC/DCA in question have acted unlawfully with regard to the Data Protection Act and have caused me to suffer possible detriment with regard to my credit rating. (And I probably forgot some other things which I have read!).

 

Rob

[robcag]

Also Rob, is there any chance you could post the Particulars of Claim so i can see what they are claiming

Here you are Paul, hope you can read it OK.

 

Rob

POC_HFC-Restons_BLANKED.pdf

[pt2537]

ok so they stated very little thats always a good sign,

 

when does your amended defence need to be submitted?

 

with regards to the counter claim, my advice, based upon your reply is not now, as you stand you have a strong case, i would hold off any thoughts of Counterclaiming, lets get this cr@p dealt with as to be honest, if i were in your position with this level of monies being claimed rob, id be happy if the court wrote off the debt for me.

 

has the debt been assigned to a DCA at all? has a dca ever been involved in pursuing this debt.

 

sorry for the questions but its really important to get the full facts

[robcag]

PS

Just in case you would like to see it, here is the order from the court which shows what stage proceedings are at, and the time-frame I have to work within, not that I understand the implications.

 

Rob

 

Edit: Info removed from PDF file

Order-from-court_20071128_BLANKED.pdf

[robcag]

Hi Paul

 

ok so they stated very little thats always a good sign,

Yes.I've started my defence off with your "The Claimants’ Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimants’ statement of case is insufficiently particularised.... etc."

 

when does your amended defence need to be submitted?

I don't really know Paul as I don't really understand the processes, but I've just uploaded the latest order from the court on post #34.

 

with regards to the counter claim, my advice, based upon your reply is not now, as you stand you have a strong case, i would hold off any thoughts of Counterclaiming, lets get this cr@p dealt with as to be honest, if i were in your position with this level of monies being claimed rob, id be happy if the court wrote off the debt for me.

I tend to agree with that view

 

has the debt been assigned to a DCA at all? has a dca ever been involved in pursuing this debt.

No DCAs have been involved, only our buddies Restons acting as HFCs legal representatives.

 

sorry for the questions but its really important to get the full facts

I'm just glad and relieved that you're asking them!

[pt2537]

ok, well, ive just finished a defence for another user this evening so im friar tucked if you get what i mean;)

 

however, i will happily help you put together an amended defence to this action

 

the key issues are the fact that the claimants POCs are not compliant with part 16 and practice direction 16 in particular para 7.3 PART 16 - STATEMENTS OF CASE & PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16

 

the document alleged to be a credit agreement is not compliant with the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in particular it fails to include the prescribed terms within the document but in a seperate document marked t&cs

 

the default notice is defective and not in accordance with the Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561)

 

that would be the way id go

 

also the court order wasnt available?

 

regards

paul

[robcag]

ok, well, ive just finished a defence for another user this evening so im friar tucked if you get what i mean;)

I know exactly what you mean

 

however, i will happily help you put together an amended defence to this action

Thanks Paul, that would be very much appreciated.

 

the key issues are the fact that the claimants POCs are not compliant with part 16 and practice direction 16 in particular para 7.3 PART 16 - STATEMENTS OF CASE & PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16

 

the document alleged to be a credit agreement is not compliant with the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in particular it fails to include the prescribed terms within the document but in a seperate document marked t&cs

 

the default notice is defective and not in accordance with the Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561)

 

that would be the way id go

 

also the court order wasnt available?

Probably because I replaced it as I'd missed some information which although not personal, gave a vague indication of my location. Could you try it again?

 

regards

paul

PS sorry for a slight delay in the reply to this post, but I was phoning someone whose details were included with the documents which Restons had sent me. As his phone number was available I told him what had happened and without asking if he had credit card problems, told him that if he did, then to take a look here!

There were also other miscellaneous documents included in my package from Restons, what a shower they are.

Anyway, thanks for your efforts so far and goodnight Paul.

Rob

[pt2537]

im a little confused, the order is a stay pending settlement, its nowt to do with filing an amended defence

 

right, this is what i suggest, we put together an amended defence and file it along with copies of the documents they have sent.

 

we set out why the documents are flawed and take it from there

 

its fairly obvious that you are not going to give them 15 grand;) so nowt to concern ourselves there with this order

[robcag]

im a little confused, the order is a stay pending settlement, its nowt to do with filing an amended defence

Hi Paul

 

I hope you don’t think I’m panicking, but I don’t want Restons to gain the upper hand in this case due to my making a silly mistake or due to my lack of or lateness in performing some action or process. You can see things from a far more experienced perspective , but I’m not familiar with the processes and would hate to let Restons snatch victory from the jaws of defeat!

 

The reason I’m anxious to enter an amended defence has probably got lost in the thread now, but basically is as follows, (using snippets from this thread in places):

 

1. (Post #3) “Due to a lack of documentary information, I originally entered a short "holding" defence to the claim, but I probably now need to enter an amended defence as I have now received some response to my CPR request.”

 

2. (Post #5) “I should probably add that on 28/11/2007 the case was stayed until 28/12/2007, so I will probably need to do something fairly quickly after Christmas.”

 

3. (All of Post #11) http://www.consumeractiongroup.co.uk/forum/general-debt/124572-hfc-no-agreement-amended.html#post1298691 , which is basically the contents of Restons letter which includes “On the basis of the enclosed documents you may wish to consider withdrawing your Defence in attempt to avoid further costs of the proceedings, failing which we will apply to the Court for Summary Judgement proceedings once the Stay has expired.” (which as you know is 28 December), to which I commented:

 

“However, I do have concerns with the time-scale involved. I received a "Standard order for stay for settlement with consent of all the parties" which stayed the case until 28 Dec 2007 as I said above, but which also states that one of certain other steps must be taken on or before 11 January 2008.

 

Do I need to be concerned about this at the moment, ie can Restons ‘jump the gun’ as it were and apply for Summary Judgement from 28 December and thereby block me from applying to amend my defence?”

 

4. (Post #21) “What do you suggest I do now to either move things on or block Restons threat (if they carry it out) to apply for Summary Judgement, bearing in mind that I only entered a very simple "holding" defence as I was not in possession of any of the documents which Restons have now sent me.”

 

5. (Post #25) What is the minimum I need to do at this stage to buy some more time and counter Restons possibly applying for Default Judgement?

 

My apologies for repeating most of the above but I just thought it would be handy to put some of my concerns in one place in answer to your point about the Order from the court not being about an amended defence .

 

I really appreciate your help at a time when most people are relaxing and enjoying themselves

 

Thanks again,

Rob

[pt2537]

Hi Rob,

 

firstly dont worry, as it stands any judgment in my humble opinion would be made in error of a point of law

 

therefore would almost certainly give rise to an appeal, remember Mrs Wilson lost her case in the county court and we all know what happened there;)

 

we should be able to get a amended defence together for you by the 28th but you will have to get it to the court ASAP and also we will include a covering letter as well setting out the claimants behaviour

 

Dont worry, try to enjoy the Christmas period

 

regards

 

paul

[robcag]

Good morning Paul

 

Hi Rob,

 

firstly dont worry, as it stands any judgment in my humble opinion would be made in error of a point of law

 

therefore would almost certainly give rise to an appeal, remember Mrs Wilson lost her case in the county court and we all know what happened there;)

Yes, agreed, but I would prefer not to have to do that if possible! ;-)

 

we should be able to get a amended defence together for you by the 28th but you will have to get it to the court ASAP and also we will include a covering letter as well setting out the claimants behaviour

I am going to phone the court this morning to find out what days they are open so that I could arrange to hand-deliver the documents (the court is not in my town unfortunately).

 

Dont worry, try to enjoy the Christmas period

It's not my Christmas I'm really bothered about too much, but the intrusion on yours!

But if you're confident it can be finished and handed in on time, that's fine by me and is the best Christmas present I could wish for ATM!

 

regards

 

paul

I'll continue to work on my "cut & paste" defence which I'm basing around your excellent defence here:

http://www.consumeractiongroup.co.uk/forum/hfc-household/117249-hfc-restons-6.html#post1278036

 

Thanks for all your input and time, and I hope you enjoy your Christmas.

 

Rob

[pt2537]

Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

TUCKEY LJ:

 

[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the

agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and

backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be

orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and

the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

 

 

 

 

 

 

 

another important part to your case from the named case above , i would consider including it within your defence along with the house of lords ruling in wilson

[robcag]

.....and also we will include a covering letter as well setting out the claimants behaviour

 

PS Paul

In case it helps you I've attached to this post a copy of the "Additional Information" sheet which I submitted with my AQ to the court.

 

Unfortunately I did not finish it with a "Statement of Truth" declaration so I don't know if it is relevant.

 

Cheers

Rob

Edited July 19, 2008 by robcag
attached document removed

[robcag]

another important part to your case from the named case above , i would consider including it within your defence along with the house of lords ruling in wilson

OK, thanks Paul

 

Rob

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my amended defence to the claim made by xxxxxxxxxxxx

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and practice direction 16 of the Civil Procedure Rules

 

3. On xx/xx/2007 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit R1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information, and now after consideration of the documents which have been supplied I can now make a fully particularised defence to the claimants Particulars

5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

 

6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

7. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

8. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

9.

10. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

11. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document headed Terms and conditions. There is no apparent link between the terms and conditions and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

12. Further more on the copy of the credit agreement supplied there is a clear crease through the agreement document which is clearly evident from the photocopying, however this crease is not apparent on the photocopy of the terms and conditions therefore this adds to my belief that the agreement and terms and conditions are indeed a separate documents

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

 

14. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

15. With regards to the Authority cited in point 21, 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."

 

16. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

17. should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement unenforceable.

 

18. .

 

19. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

20. I refer to the date of the letter as being the first day of February 2007, this is the date of service of the said notice. The notice clearly states that the breach must be remedied before the 14/02/2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

21.

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

 

 

 

Hi Rob, this is as far as i have got with the time allowed this morning, i wouldnt usually post a part finished defence, but i just wanted to reassure you that things will be finished in time and every attempt will be made to get the case thrown out

 

 

if the judge ignores the house of lord s as well as the will of parliament in the legislation then he is very foolish

 

regards

paul

[robcag]

Hi Rob, this is as far as i have got with the time allowed this morning, i wouldnt usually post a part finished defence, but i just wanted to reassure you that things will be finished in time and every attempt will be made to get the case thrown out

 

 

if the judge ignores the house of lord s as well as the will of parliament in the legislation then he is very foolish

 

regards

paul

 

WOW!!!

Brilliant help Paul!

 

I've been trying to get hold of the court on the phone but as nobody is answering I can only assume that they are already closed for Christmas.

 

I have to nip out to catch the bank and Post Office before they close, but I'll be back within an hour or so and have a look at your long post above.

 

Can't thank you enough

Rob

[pt2537]

Youre very welcome

 

i hope to be able to complete a comprehensive defence by the 28th th usual rules apply im not a qualified lawyer so if you use my suggested defence its totally your prerogative

 

ill update this further when ive finished a full first draft

 

regards

paul

[robcag]

Hi Paul

Just got back in from the PO and bank and am going to read your partial Defence above. I'll have to try and phone the court office again on the 27th and hope they will be open then.

 

Youre very welcome

 

i hope to be able to complete a comprehensive defence by the 28th th usual rules apply im not a qualified lawyer so if you use my suggested defence its totally your prerogative

I don't have any problem taking your advice Paul and using your Defence.

 

ill update this further when ive finished a full first draft

Thanks a lot, but don't forget to take some time out!

 

regards

paul

 

Cheers

Rob

[pt2537]

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my amended defence to the claim made by xxxxxxxxxxxx

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

 

3. On xx/xx/2007 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit R1) I requested the claimant supply this information in xx days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information (Attached Marked Exhibits R2) , and now after consideration of the documents which have been supplied I can now make a fully particularized defence to the claimants Particulars

 

5. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof

 

6. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)for the reasons set out below in this defence and as a consequence it is unenforceable

 

7. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

8. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

9. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

10. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document headed GENERAL INFORMATION ABOUT YOUR GM CARD. There is no apparent link between the GENERAL INFORMATION ABOUT YOUR GM CARD and the credit agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

11. Further more on the copy of the credit agreement supplied there is a clear crease through the agreement document which is clearly evident from the photocopying, however this crease is not apparent on the photocopy of the GENERAL INFORMATION ABOUT YOUR GM CARD therefore this adds to my belief that the agreement and GENERAL INFORMATION ABOUT YOUR GM CARD are indeed a separate documents

 

12. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

13. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

14. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

15. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

16. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

17. With regards to the Authority cited in point 16, 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."

 

18. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

19. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit R1) unenforceable.

 

 

20. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

21. I refer to the date of the letter as being the first day of February 2007, this is the date of service of the said notice. The notice clearly states that the breach must be remedied before the 14/02/2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

22. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 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 comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

 

23. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

24. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 12,16 and 17 of this defence. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

 

25. 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 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

26. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, 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 in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

27. Further more, the it is drawn to the attention of the court that the claimant has suggested in an open letter dated xx/xx/2007 (Attached Marked Exhibit R3) that

 

"On the basis of the enclosed documents you may wish to consider withdrawing your Defence in attempt to avoid further costs of the proceedings, failing which we will apply to the Court for Summary Judgement proceedings once the Stay has expired."

 

Should the claimant apply for summary judgment it is requested that the court turn aside such request as unreasonable when considering matters pleaded and the unreasonable behavior of the claimant in failing to disclose the documents which were necessary in complying with not only the CPR part 16 and practice direction 16 but my ability to prepare a proper defence to the allegations made in the particulars of claim

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

 

 

right then, thats about it, have a read through and see if there is anything you want to add,

 

Good luck,

 

Regards

paul

[robcag]

right then, thats about it, have a read through and see if there is anything you want to add,

 

Good luck,

 

Regards

paul

Hi Paul,

That looks excellent!

 

Sorry I didn't get back to you earlier than I have, but I did look in and check from time to time just to ensure you hadn't asked me anything, and just assumed you were having a well earned break. However I was wrong and you were obviously still hard at it!

 

I have read through the defence and I am going to study it and try to understand all the implications and references to other documents so I will probably be back to you when I've managed to absorb it all!

 

Does it matter that I didn't actually request disclosure under CPR (and my CCA request) until the last day for my original defence to be entered?

I had only just discovered CAG the day before that (just in the nick of time for this case!), see my first very short thread for details of my original request for advice on here: http://www.consumeractiongroup.co.uk/forum/general-debt/116254-cca-request-r-subject.html

 

I am thinking we may need to change the beginning of the defence to reflect this, just so as to not give the impression that I am not telling the truth or being inaccurate with the facts.

 

Hope you enjoy your Christmas day,

 

Thanks a million for spending your Christmas Eve helping me,

Cheers,

Rob