MTB v Halifax

[alamand]

Hi Rosie

 

I didnt pay the £100 because I was on a DMP at the time. They accepted what we was paying and i didnt here from them again.

 

So in my defence would you put the Default notice part in.

 

Thanks

Alamand

[rosierose]

Hi Rosie

 

I didnt pay the £100 because I was on a DMP at the time. They accepted what we was paying and i didnt here from them again.

 

So in my defence would you put the Default notice part in.

 

Thanks

Alamand

 

I would have thought the same would apply then, though I am no expert. On second thoughts.. why not read the Act; doesn't it say that a default notice should be served if a creditor would wish to enforce early payment etc., .... Best to have a look.

 

Rosie

[alamand]

Thanks Rosie

I will have a look

Thanks

Alamand

[alamand]

Hi Guys

 

After looking at the court papers again, the poc is

 

"The Claimants claim is for xxxxx(full amount) presently due pursuant to a credit agreement entered into by both parties, full particulars of which have been supplie hitherto. By an agreement date xx/xx/xxxx the Defendant has an account xxxxxx with the claimant. The Defendant has failed or delayed to adhere to the terms of the Default Notice issued by the claimant under the terms of the Consumer Credit Act 1974. The balance due at 0/(thats on the paper, no date) on said account is xxxx (full amount)"

 

Am I right in thinking, that they are relying on a Default notice.

Now is it the old one( for £100) or should it be a new one for the said full amount.

 

I have been too busy querying the application form, I havnt noticed the Poc (still need to know if it is enforceable).

 

I have read s88 and it goes straight over my head ( wish I was brainy).

 

It says "nature of alledged breach" and "is the alledged breach capable of remedy".

 

Does that mean a new Default Notice should have been sent to make arrangements to pay the debt off, because when they sent the old Default Notice for £100, they accepted the payment from my DMP and didn't take any further action.

Plus, why was the default notice dated 2004, but on my credit files it is dated 2006.

 

Confused. Help needed understanding. Wish it was written in plain english.

 

Alamand

[Hopeful1]

Hi Alamand

 

Is there any chance you can scan up the default notice so we can check it complies with dates etc. I don't think they would need to re-issue a notice if you didn't make the £100 payment they requested. Even though you had a payment plan in place, the original agreement was defaulted on.

 

Have you missed any of the payments you agreed to make through your DMP? Who is managing your DMP? Sorry if you have written all this up before, i haven't got time to read all at the moment.

[alamand]

Hi Hopeful

 

This is the default notice

 

I stopped payments through CCCS in August 07 when Halifax sent the application form, following advise from here that the application form was not enforceable.

I didn't miss any payments until then.

 

Thanks

Alamand

[Hopeful1]

How many days did they give you to pay the default notice? It should be a minimum of 7 days.

[Hopeful1]

I have alerted the moderators to your thread for help. Sit tight and someone will have a look for you.

[alamand]

Thanks Hopeful

 

It said to pay before 10/12/06 so I think it was more than 7 days. We rang CCCS at the time and I think they sorted it as we didn't here from Halifax again.

 

I was also wondering, if the application form is enforceable, as it now seems that it is, should I put in my defence that I tried to offer a full and final settlement in 2006, but Halifax never replied or acknowledged my offer.

 

Thanks for your help. I will wait and see if the moderators can help, because I only have 2 days to put a defence in.

Halifax havn't replied to my CPR letter.

 

Many thanks

Alamand

[steven4064]

I have alerted the moderators to your thread for help. Sit tight and someone will have a look for you.

Hi alamand

 

I had a look at the agreement they sent you and that youposted back in post #1.

 

It is not very clear and that might make a judge think it was unenforceable under regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

However, it obviously has your signature in part 7 and the prescribed terms are just under section 1 so I would say that it would more than likely be deemed to be enforceable despite its rather poor quality.

[alamand]

Hi Steven

 

Thanks for looking.

 

What do you think would be the best thing to put in my defence.

I was told that the application form was not enforceable,just because it was an application form( pre contractual agreement). So I have let it get to the court stage.

I have acknowledged and said I would defend. Would it be worth arguing this point (pre contractual)

 

Do you think Halifax should have sent another Default Notice as well, is this point worth arguing as well.

 

Also is it worth adding that I tried and offered a full and final settlement and Halifax didn't respond.

 

I am not trying to get out of paying, but if I could offer a full and final settlement or even if I get a CCJ, the interest would stop and we could finally get this debt off. I have already got a default which is more or less the same.

I have negotiated F&F settlements with 5 other creditors, its just I was told this one was unenforceable.

 

The other 3 credit cards I am dealing with are unenforceable and I am fighting these but not got to court stage yet.

 

So if you or anybody can please help with my defence.

 

Many thanks

Alamand

[steven4064]

At one point, a while ago, we were under the impression that an application form was not enforceable for the reasons you state. It turns out that that may be the case, but only if a contract was never executed afterwards - in that case the application form would not be evidence that a contract existed.

 

In your case, though, the application form is actually dual-purpose - it is an application form but it is also a credit agreement. Once it is signed, it becomes the contract and is no longer 'pre-contractual'

[alamand]

Thanks Steven

 

Any ideas on what I should do next.

The defence has to be in by Saturday.

 

Thanks

Alamand

[citizenB]

bump

[alamand]

Thanks Citizen

 

It looks like I am going to have to do this myself.

 

I am sorting out the defence now before I write to Halifax explaining that they havnt responded to my CPR request and they didnt respond to my Full and Final settlement offer in 2006 but that the offer still stands and that I will demonstrate to the judge that they have completly ignored my reasonable attempts to settle the agreement, in fact their only response was to reinstate the interest and put charges on the account while I had been paying on a DMP for nearly 3 years with CCCS. After informing CCCS, they then stopped the interest again.

 

My only question is, should I put the Full and Final settlement offer and their lack of response to it, in the court defence.

 

Alamand

[citizenB]

I think you could probably mention that you had in fact made this offer and it had been refused.

 

I wonder if it would be an idea for you to pm steven4064 who appears to have been assisting you so far. Dont go into detail in the pm. Just include a link to your thread and ask if he wouldnt mind looking in when he has some time.

 

I am sorry I cant be of more help, but I would probably get you life without remission if I were to try.

[alamand]

Thanks Citizen

 

I will most probably do that myself.

 

I will give that a go while I try and do the defence and letter, not got much time now, it needs to be posted next day delivery tomorrow morning.

 

Kind regards

Alamand

[citizenB]

Alamand, sorry, have I lost the plot. 42 man posted a defence for you to mess around with in post 15 of this thread.

[alamand]

Yes

 

That is the defence I am playing with.

 

I am omitting the Letter before action bit, I received that.

 

It was the default notice part I was querying, as I received one in 2004 even though according to my credit files, the default was 2006.

I was querying if they should have sent another for the full amount. I think I will leave that part in (act dumb, which is not far wrong).

 

I just needed to know whether to add in the Full and Final offer. If I leave it out will I be able to add it in later

 

Thanks

Alamand

[alamand]

HI

 

This is the defence I have tweaked with

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxx - Defendant

 

 

 

Defence

 

 

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

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

a) The claimant's statement of case still fails *top comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil procedure rules requires that a copy of the written contract be served with the claim. However the claimant has failed to supply the defendant with a copy of the agreement which the claimant bases this claim.

 

 

 

Statutory request made under section 78 Consumer Credit Act

 

4. On xx/xx/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit X & X

 

5. For clarity, section 78(1) of the Consumer Credit Act 1974 states

78. Duty to give information to debtor under running-account credit agreement.-

 

(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 [F1 £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.

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (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.

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to in points 4,5 and 6

 

 

The Request for disclosure

 

 

 

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice. (Attached marked X)

 

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

 

10. Notwithstanding point 7 that the claimant is not entitled as matters stand to this action. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

 

 

11. 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

 

12. 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)

 

 

13. 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

14. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

15. 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."

16. 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

 

 

17. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

18. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

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 unenforceable

 

 

20. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

21. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

22. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

23. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

24. Finally, key documents etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

25. Therefore since the original documents are required under the regulations stated in this defence and further more since the Civil Procedure Rules clearly set out that Original documents must be made available for inspection in practice direction 32 Para 13.1 I request that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement

 

26. If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

27. Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

 

 

 

87. Need for default notice.

- (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

And further more section 88 states

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form and specify-

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

 

28. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

Failure of the Claimant to supply a sufficient letter before action

 

29. The claimant has in the defendants opinion failed to conduct themselves in accordance with the Civil Procedure Rules insofar that the letter before action that the defendant received was not compliant with the CPR preaction protocols which state

4.3

The claimant's letter should -

(a)

give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

 

(b)

enclose copies of the essential documents which the claimant relies on;

 

©

ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

 

(d)

state whether court proceedings will be issued if the full response is not received within the stated period;

 

(e)

identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

 

(f)

state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

 

(g)

draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

 

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

 

31. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

32. Additionally since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act 1974 as stated this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974

 

33. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

34. 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 Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

35. I respectfully ask the permission of the court to amend this defence if / when the claimant provides full disclosure of the requested documents and allows inspection of the original documents

 

36. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

:

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

 

Could someone cast an eye over it for me please.

 

Can somebody please advise if I should put something in at this stage about Halifax not responding to reasonable offers of settleing the debt.

 

Alamand

Edited June 26, 2008 by MARTIN3030

[citizenB]

Okey dokey, it looks ok to me but then what do I know !. You have put in the embarrassed bit so that is ok, and you have left in the bit where you are requesting leave to amend if the idiots decide to produce any paper work and you have something to work on.

 

I really dont know about this full and final settlement letter bit.

 

I will ask a mod/site helper to have a look for you. OK. This has to be off tomorrow doesnt it ?

 

Ok, I have hit the panic button, hopefully someone will be able to look in for you.

[alamand]

Thanks Citizen

 

Yes it has to be off tomorrow.

 

I have also compiled this letter to Halifax. Do you think it would be ok to send. I am hoping that I can settle before court. It might be too late now.

 

I am writing with reference to the recent court action your company has instigated against myself.

You have failed to respond to my letter dated xx/xx/2008 in which I requested information and documents that you will be relying on in court under Civil Procedure Rules. The request was received in your office on the xx/xx 2008.

I have submitted my defence today, xx/xx 2008, and have advised the court of your failure to submit any documents to support your case against me.

I will also inform the court, that you have refused to accept any reasonable offers to settle this agreement.

I wrote to you on the xx/xx 2006 offering you a Full and Final Settlement, to which you failed to reply.

I wrote again on the xx/xx 2006 and you responded by asking me to contact your office.

I contacted your office on the xx/xx 2008, to which you stated that you would not accept the offer and that you needed an income and expenditure sheet to look at any offer.

I wrote to you again on the same day and enclosed an income and expenditure sheet and a new increased offer.

Your response to that letter was to re-instate interest and add charges to the account, even though I was making regular payments on a DMP with xx.

I will demonstrate to the court with supporting documents that your behaviour towards my attempts to settle this debt and your lack of correspondence that I have received since making a Consumer Credit Agreement request, namely no contact made between xx/xx 2007 and xx/xx 2008, has not been favourable.

Indeed, the debt has increased.

Once again I can raise the sum of £xxxx to settle this agreement and if accepted, payment can be made within 7 working days of receiving your written agreement to this offer and payment.

Please be advised that a copy of this correspondence will be disclosed to the court.

 

Thanks

Alamand

[MARTIN3030]

Well done.

As you say it may be a little late to get the letter off to the Halifax-short of faxing it directly to their legal team.

I dont think the specifics of your efforts to settle with them by your offers will in itself make much difference.You can of course say that you have tried exhaustively to settle the matter without wasting further Court time and costs with the defendants but that they have shown no interest in doing so.

[alamand]

Thanks Martin

 

I will get the defence off first thing tomorrow.

 

Thanks once again Martin and Citizen

 

Alamand

[Hopeful1]

Martin - i have quoted Steven below with regards to the agreement Alamand has posted up. Do you concur with Steven and if so, is the defence still entirely appropriate?

 

At one point, a while ago, we were under the impression that an application form was not enforceable for the reasons you state. It turns out that that may be the case, but only if a contract was never executed afterwards - in that case the application form would not be evidence that a contract existed.

 

In your case, though, the application form is actually dual-purpose - it is an application form but it is also a credit agreement. Once it is signed, it becomes the contract and is no longer 'pre-contractual'