help with court request HFO for a monument card

[linz2011]

Hi

the reply card is the CCA, there is no default notice and this is my defence (which has not been amended)

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all.

 

The defendant has asked the Claimant for disclosure of documents. Specifically, statements for the duration of the alleged agreement, a copy of an executed agreement, and a breakdown of all charges levied to the alleged account. By failing to furnish said documentation, the Claimant is denying the Defendant the opportunity to file a properly particularised Defence.

 

The Defendant will seek the permission of the Court to amend the Defence when the Claimant provides the information requested.

 

It is averred that the Claimant having failed to serve a Notice of Assignment on the Defendant as required by section 136(1) of the Law of Property Act 1925, does not possess any legal right to issue a claim demanding monies allegedly owed. Under the aforementioned Act, the absence of a Notice of Assignment precludes the claimant from instigating these proceedings and continuing with the same.

 

The Defendant puts the Claimant to strict proof that a Notice of Assignment was received, as averred in the Particulars of Claim. Accordingly, the Defendant does not know the case it has to meet and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing the claim is vexatious and amounts to unlawful harassment pursuant to section 40 of the Administration of Justice Act 1970.

 

In respect of that which is denied, a request was made under section 78-79 (since I have no knowledge of the type of agreement) of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to.

 

The Claimant has twelve working days from receipt of the request, to provide said document, which is stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. In response to the request, no letter has been received. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78-79 of the Consumer Credit Act 1974.

 

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

 

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

 

The defendant contends that:

 

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

 

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

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

I 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.

 

The Defendant puts the Claimant to strict proof that any Notice of Assignment sent to me was legally valid. To be valid, a Notice of Assignment must be accurate in respect of the amount stipulated.

 

It is denied that any Default Notice was received from the claimant, and the claimant is put to strict proof that any default notice sent complied with section 88(1) of the Consumer Credit Act 1974, as to form and content, and has therefore been registered with Credit Reference Agencies unlawfully.

 

The Claimants are not entitled to claim interest, as they have not established a legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely unmeritorious and should be struck out for the aforementioned reasons.

[linz2011]

Hi just wanting to BUMP so someone can look it over for me

Thanks

[popeye1]

Ithink you have a good case but someone better will be along soon,this will bump you up

[linz2011]

thanks popeye, its not massively urgent but just want to know where I stand

[Rhia]

Just a couple of things. It is the original creditor who should issue the notice of assignmentAs you know Section 136 of the Law of Property Act 1925 requires notice of the assignment to be given to the debtor if it is to be effective at law".It does not appear that there is any intent in the legislation that allows for the assignee to issue a notice of behalf of the original creditor: “The conditions which must be complied with are: (1) the assignment must be in writing under the hand of the assignor; (2) the assignment must be absolute, and not purporting to be by way of charge only; and (3) express notice in writing of the assignment must be given to the debtor, trustee, or other person from whom the assignor would have been entitled to claim the debt or thing in action.”The words in bold are my emphasis. They cannot just issue any old NOA using a cut and paste logo of the OC onto office paper.I don't think it's the NOA that has to be accurate in respect of the sum but the default notice which has to be completely accurate in every respect as laid down in the regulations. May be wrong over this last bit but double check.

Edited December 3, 2008 by Rhia
add bold

[popeye1]

Looks about right to me Rhia

[linz2011]

Just wanted to let you all know - I won they failed to comply with an order the judge made and it was struck out!!!

 

Thanks to you all

[diamondgirl]

Hi Linz2011

Its nice to know ordinary people can beat the so called I know the Law type

hope Im as lucky when my turn comes:D:D

[rich2568]

Just wanted to let you all know - I won they failed to comply with an order the judge made and it was struck out!!!

 

Thanks to you all

 

Hi Linz2011

 

Great news!!

 

Can you put us in the picture specifically why it was struck out- what was the order they failed to comply with?

[angel_1]

hiya linz2011

 

that is beautiful news to our ears,,,,,:D

 

fab news for you

 

let us know more bits about it and on what grouds to help us all

 

and if you had any defaults, will they now be removed from your credit file?

 

laters angel x

[linz2011]

Hi

 

The judge found flaws with their particulars of claim and requested that an amended particulars of claim be submitted before a certain date - they did not submit that and the judge struck it out.

 

Another lot of good news today - another one I was about to go to court with has sent a notice of discontinuance - (will post on that thread though:))

 

Thanks for all your support and help and if anyone wants any helps with HFO or anyone else let me know because, trust me, I am old hat at court appearances (civil not crim lol) - in my opinion fight them all the way and don't let the buggars get your down

[popeye1]

Brill news

[Rhia]

Excellent work. Can you post a link to your other thread on here so we can pop across and smile at that one too?

[DonkeyB]

Well done linz - another one in the eye for the bag of sh1te that is HFO and Turnbullsh*t Rutherford.

[42man]

Hello Linz....this is fab news, really pleased for you....you mentioned another has discontinued ? Go for a wasted costs order !!! - http://www.consumeractiongroup.co.uk/forum/legal-issues/151701-phoenix-recoveries-court-summons-2.html

[rich2568]

Hi

 

The judge found flaws with their particulars of claim and requested that an amended particulars of claim be submitted before a certain date - they did not submit that and the judge struck it out.

 

Another lot of good news today - another one I was about to go to court with has sent a notice of discontinuance - (will post on that thread though:))

 

Thanks for all your support and help and if anyone wants any helps with HFO or anyone else let me know because, trust me, I am old hat at court appearances (civil not crim lol) - in my opinion fight them all the way and don't let the buggars get your down

 

 

Super dooper linz!!

 

Yes- my post could do with a bit of help at the mo as I`m awaiting the Court Docs- can you have a quick glance and post your comments

[creditcardmug]

My congrats as well:D

 

CCM

[vjohn82]

Has anything else happened with this?

[linz2011]

Hi it is done and dusted struck out - what is it you are wanting to know are you wanting help with something?

[vjohn82]

Hi,

 

The threads on my signature speak for themselves... but essentially any documents you have regarding notices of assignment etc would be useful.

 

I'm looking at bringing a civil action case against HFO/Turnbull for their "suspected" dodgy/vexatious litigation practices.

 

Thanks