Loan from Tesco Incasso Applying For Charging Order / CLAIM NOW RECEIVED

[ScabHunter]

No, the default notice needs to have been issued by the original creditor before they terminated the agreement. If that didn't happen, or if the default notice was defective, then they have shot themselves in the foot.

 

Can you remember if you received a default notice just before the account was terminated and passed to a DCA?

 

SH

[Poppay2]

No, unfortunately I can't remember. I was made redundant in 2002 and was also quite ill.

It would have been at least 6 yrs ago if not longer.

I went to the CAB to help me with some of the debts.

I did manage to find a letter from RBS dated May 2007 agreeing to accept monthly payments of £5.00 for six months and then to review the amount.

Prior to that I had two letters from Unidebt asking me to contact them to review payments one dated 6 April 2007 and one dated 27 April 2007.

The same reference number is quoted in the references of all letters.

The RBS letter has 'Lending Operations' at the top.

The body of the letter does state that if I do miss a payment I will be in default.

However, I don't think I have missed a payment.

The telephone number is the same on all letters.

I haven't managed to find the original CCA yet, it may be in the loft, and that means it will take some finding.

Sorry, not much to go on so far.

P.

[Poppay2]

The more I think about it, the more I dont believe they did send me a default notice as I had to arrange minimum payments of £1 whilst I was unemployed and on incapacity benefit.

 

Thankfully I've managed to regain my health and get back to work since then.

[Poppay2]

Reading through some other posts jogged my memory and I remember sending Incasso a letter on 26 September 2008 with the heading:

I do not acknowledge any debt to your company

which details the date that I first requested the CCA and the request for the CCA was sent on 4th August 2008.

 

The signed copy of the schedule signed by C Bryce or Price was dated late October 2008.

 

I dont know if that helps any?

P.

[Poppay2]

Hi SH

I have been sorting through stuff and had completely forgotten that in December 2000 I had engaged 'Baines & Earnst' to deal with my debts. (Not one of my better decisions).

I dont appear to have ALL the statements but the statements start off listing the debt with 'Royal Bank of Scotland', then later as 'RBS Recovery' then finally as 'Unidebt'.

After being made redundant in October 2002 I finally took control myself and went to the CAB to help me with my debts as I was unemployed for quite some time.

I also recall that when Unidebt disappeared and RBS/NatWest people were calling me again last year that when I first spoke to someone they asked me whether or not Baines and Earnst were still dealing with my debts, this did puzzle me somewhat as I have been dealing with my debts since late 2002 and Unidebt were aware of that, but I did not realise at the time that I was no longer dealing with Unidebt.

As far as I can recall I have not received a default notice from RBS.

My paper work with Baines & Earnst goes back to December 2000.

I will have to dig deeper in the loft to ensure I dont have any more papers stuffed away up there.

 

Regarding your question about a default notice:

'Did they really demand the entire balance without first issuing a default notice?'

 

Last year is the first occasion that I can recall that they have demanded payment in full and this was via Incasso.

I can categorically state that I have not recieved a default notice prior to Incasso demanding payment in full and then threatening to take me to court after refusing my payment offer (payments still going through). Certainly no default notice has been received in the last 3-4 years as I have made a point to deal with debt matters immediately and not to let them get out of control.

 

Best regards

P.

Edited January 20, 2009 by POPPAY

[ScabHunter]

This really is an extraordinary tale. It doesn't look like the enemy has paid any attention whatsoever to the Consumer Credit Act 1974. They cannot just go around demanding balances or closing accounts. They have to issue a default notice.

 

The CPR letter will not be complied with, for obvious reasons. This is clearly a case which needs a holding defence, challenge of non-compliance at the AQ stage, and then a blitz on the non-existent default notice. If the agreement is a reconstruct as well.....

 

When did you send your CPR letter, and when does the defence have to be in by?

 

SH

[Poppay2]

This really is an extraordinary tale. It doesn't look like the enemy has paid any attention whatsoever to the Consumer Credit Act 1974. They cannot just go around demanding balances or closing accounts. They have to issue a default notice.

 

The CPR letter will not be complied with, for obvious reasons. This is clearly a case which needs a holding defence, challenge of non-compliance at the AQ stage, and then a blitz on the non-existent default notice. If the agreement is a reconstruct as well.....

 

When did you send your CPR letter, and when does the defence have to be in by?

 

SH

Hi SH

I expect they are going for the scare factor, scaring the heebie jeebies out of people to recoup monies!

 

I did the AOS online on the 10th January

I sent the CPR on 12th January by Special Delivery.

Does that mean I have 28 days inclusive of weekends to file defence from the 10th Jan?

 

regards

P.

[Poppay2]

This really is an extraordinary tale. It doesn't look like the enemy has paid any attention whatsoever to the Consumer Credit Act 1974. They cannot just go around demanding balances or closing accounts. They have to issue a default notice.

 

The CPR letter will not be complied with, for obvious reasons. This is clearly a case which needs a holding defence, challenge of non-compliance at the AQ stage, and then a blitz on the non-existent default notice. If the agreement is a reconstruct as well.....

 

When did you send your CPR letter, and when does the defence have to be in by?

 

SH

Hi SH

I have managed to upload the scanned images to photobucket re: the CCA they sent me.

I am still looking for the original copy, havent found it yet.

 

 

Image of RBSCCA1 - Photobucket - Video and Image Hosting

 

Image of RBSCCA2 - Photobucket - Video and Image Hosting

 

Image of RBSCCA3 - Photobucket - Video and Image Hosting

 

Image of RBSCCA4 - Photobucket - Video and Image Hosting

 

Image of RBSCCA5 - Photobucket - Video and Image Hosting

[womble72]

Hi Poppay,

 

Was there a PPI on your loan?

It looks like you have insurance shown on the paperwork.

 

Did you know about any insurance taken out with the loan?

[Poppay2]

Hi Poppay,

 

Was there a PPI on your loan?

It looks like you have insurance shown on the paperwork.

 

Did you know about any insurance taken out with the loan?

Hi Womble72

I did notice the insurance on it, I don't think I was aware of it, but I couldn't swear on it as it was so long ago.

[ScabHunter]

I noticed the PPI as well, womble.

 

POPPAY, you say you lost your job through illness, and were unemployed. Did the insurance ever pay anything out to cover you for this?

 

If the PPI was mis-sold, then that would mean any amount on the default notice would be substantially inaccurate, and therefore the default notice would be invalid.

 

Except that we don't even seem to have a default notice.

 

The way this whole issue has been handled has been amateurish and pathetic. They really shouldn't have a chance with this case.

 

Can you please just tell me the answer to these questions - When did you send your CPR letter, and when does the defence have to be in by?

 

SH

[Poppay2]

HI SH

 

 

Claim forms received 10th Jan

 

Acknowledgement of Service

Completed online 10th Jan

 

CPR LETTER

Sent 12 Jan - Special Delivery

 

PPI - INSURANCE

Actually, I was never aware that I could claim insurance against this Loan, else I would have done, as I did for the mortgage payments.

 

DEFENCE DUE

Is this 28 days from the date of filing the AOS? Does that also include weekends?

28 days from 10 Jan is 7th of Feb?

Would that be the due date of Defence?

 

regards

P.

[ScabHunter]

HI SH

 

 

Claim forms received 10th Jan

 

Acknowledgement of Service

Completed online 10th Jan

 

CPR LETTER

Sent 12 Jan - Special Delivery

 

PPI - INSURANCE

Actually, I was never aware that I could claim insurance against this Loan, else I would have done, as I did for the mortgage payments.

 

DEFENCE DUE

Is this 28 days from the date of filing the AOS? Does that also include weekends?

28 days from 10 Jan is 7th of Feb?

Would that be the due date of Defence?

 

regards

P.

 

The 28 days is from receipt of the claim form, but in this case that is the same date as the AOS anyway.

 

So the CPR letter will have been received on the 13th. Allowing 14 days means you need to give them until the 27th. I would file the defence on the 28th, so you can report non-compliance with CPR 18.

 

If you need any help with the defence, just post here.

 

SH

[Poppay2]

Hi SH

 

I will put 28th in calendar for date to file defence.

 

I will totally need help with the defence, I dont really know where to begin, if it hadn't been for this site, I may well not have my eyes quite open as they are at present.

I will have another route around for any more old documents over the weekend as well.

Many thanks for all your valuable help.

P.

[ScabHunter]

There are always experienced posters around who can help with defences.

 

For now, have a look at this one -

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171510-help-please-court-papers-6.html?highlight=court#post1882272

 

The Particulars of Claim on your form are pitiful to say the least, so points 1-4 can be used as is. Have a look at points 9 and 10, which refer to non-compliance with a CPR request. Yours relates to Part 18 and not 31.14, but the wording needs to be virtually the same.

 

16, 17 and 18 are also highly relevant, as it seems that there was no default notice issued on this alleged account before it was terminated by the original creditor.

 

The difficult part of the defence is going to be the part after the beginning, where in this sample defence the agreement was challenged. This one needs a bit of thought, as you seem to think it is a reconstruct?

 

Of course, you don't need to mention the agreement at all in a holding defence. It is enough to answer the pitiful particulars of claim, insofar as you are able, to point out non-compliance with CPR, and to put them to strict proof that a compliant default notice was issued.

 

SH

[Poppay2]

Hi SH

 

I have accessed the link given and copied the relevant parts into a word document to consider and edit over the next few days.

I will use this weekend to hunt for the original CCA which I know I have somewhere in the house I am sure I have seen it in recent months, but cannot seem to find it now, (aint that always the way?).

I will keep you posted.

Many thanks

P.

[Poppay2]

Hi SH

I received a letter from Incasso over the weekend.

It basically says that Tesco say that it will cost me £10 for the information I have requested, not surprised by the letter as I think I read on another thread that this is their standard reply to a CPR 18 letter.

 

Do I write to Incasso in reply. I will add the letter to photobucket and post the link later.

P.

[ScabHunter]

Hi SH

I received a letter from Incasso over the weekend.

It basically says that Tesco say that it will cost me £10 for the information I have requested, not surprised by the letter as I think I read on another thread that this is their standard reply to a CPR 18 letter.

 

Do I write to Incasso in reply. I will add the letter to photobucket and post the link later.

P.

 

No, don't waste time or money replying to their facetious, insulting, puerile dishonest drivel.

 

They know as well as anyone else does that the £10 fee applies to Subject Access Requests, and NOT to requests for information under the Civil Procedure Rules.

 

Simply point out their non-compliance as part of your defence, and then challenge them again at the Allocation Questionnaire stage.

 

If they have got the paperwork, why don't they produce it instead of wasting everybody's time? I may be wrong, but I think they are bluffing.

 

SH

[Poppay2]

Hi SH

 

I agree, I think they are relying on people's lack of knowledge in this area and aiming to confuse and hinder.

 

I will mention it in the defence which I will submit by end of tomorrow.

 

P.

[UnmoderatetheNet]

Personally I would write back advising on the amount of court costs that these losers will have to cough up for bringing this donkey to court in the first place. Will make there £10 request quite small by comparison

[Poppay2]

Hi UnmoderatetheNet

 

I doubt they would take any notice whatsoever, they are just out to intimidate, harrass and instil fear into people in order to get as much money out of them as they can.

 

Anything you say to them or even put into to writing to them either falls on deaf ears or they dont take a blind bit of notice.

 

Unfortunately for many other this is not the only donkey they have/are bringing to court. (Personally I think that 'A**' might be more appropriate than donkey, if that's not being too rude! )

P.

[Poppay2]

Hi SH

 

I have put together and read the parts of 'capquest' defence that you said was relevant to my situation. I am in two minds about mentioning the cca, I have not managed to find the original as yet.

Should I perhaps leave mention of the CCA out?

 

Also, the bit about they 'refuse' to comply with the CPR request.. as they did write about it costing £10, should I change 'refuse' to 'have not complied' or something similar?

 

I have posted a copy of the defence below:

 

would you mind giving it the once over?

Many thanks

P.

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxx - Defendant

 

 

Defence

 

1. 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.

 

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

 

3. The claimants’ Particulars of Claim 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. In this regard I wish to draw the courts attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

5. Further to the case, on xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 18, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

 

6. Despite the fact that the Civil Procedure Rules 18 demand a response within fourteen days, my request for information under the Civil Procedure Rules 18 has been ignored. The request was sent via Special delivery, and was signed for on xx/xx/2009. Please find attached exhibits 2 and 3, copies of proof of posting and proof of delivery. Since the claimant has refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

7. 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)

 

8. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

9. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

[ScabHunter]

Would you believe this? Here I am checking court defences on January 27th, the most sacred day of the year!

 

Happy 253rd Birthday W.A. Mozart

 

I know you want to get the defence submitted tomorrow, so I'll go through it now.

 

Points 1-4 can be used as is.

 

I would change point 5 slightly to :

 

5. Further to the case, on xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 18, including, but not limited to, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

This is because the Part 18 request covers more documents than just the ones mentioned. Normally, you would have made a Part 31.14 request for copies mentioned in the statement of case, but the Particulars of Claim here were so pathetic they didn't even mention any!

 

Paragraph 6 - here are two paragraphs from a defence I amended last year in which exactly the same thing happened -

 

10. The claimant responded on the xx/xx/2008 to my request for disclosure under the Civil Procedure Rules Part 18 claiming that my legitimate request under the Civil Procedure Rules was in fact a Data Protection Act Subject Access Request, and refused to comply with my legitimate request. The request was send via Special/recorded delivery, and was signed for on xx/xx/2008. Please find attached exhibit 3, a copy of proof of delivery. Since they have refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

 

11. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the claimant has stated in the letter referred to in point 10 that "we require the statutory £10 administration fee. This is in line with the Subject Access Request rules." As the claimant is perfectly well aware that I requested information under the Civil Procedure Rules which require no fee, it is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me. Please find attached exhibit 4, letter dated xx/xx/xxxx.

 

Between 6 and 7, I would still include paragraphs about the need for an agreement. If, as you say, they have sent you a reconstruct, they may well not have an enforceable original.

 

12. 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 assess if any agreement the claimant is 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). 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

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

 

14. Notwithstanding points 12 and 13, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

15. The claimant is therefore put to strict proof that such a compliant document exists

After this, the paragraphs about the default notice are essential.

 

After your paragraph 9, I would add the following for the sake of completeness -

 

20. 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.

 

21. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 9. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

 

22. In addition 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 xxxx, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

It is up to you, of course. You will have to adjust the paragraph numbers, as these have all been taken from other defences. The other consideration is whether you want to file the defence online or post. If you want to file it online, it needs to be under 8000 characters. In this case, the best thing you can do is get the defence you want to submit put together, do a character count, and if it is over, work out how to trim it down.

 

I will be online tomorrow morning and early afternoon, and possibly later - I don't know for sure. Let me know if you've got any further questions.

 

SH

[Poppay2]

Hi SH

Thats great I will put it all together and do a word count.

 

I was wondering about attachments if submitted online.... if I do submit online should I send a hard copy through the post with the referred to attachments or is there a facility to upload attachments.... I will try to investigate the site myself, if I am able to find the time, if not I will do it this evening.

You have been a huge help, thanks again.

P.

[Poppay2]

Hi SH

I've amended the defence with your suggestions, I will review it again later just in case i have numbered it wrong or have the paragraphs out of sequence.

I changed the 'exhibit' numbering, although not sure if I need to also attach a copy of the CPR 18 request?

 

If I submit my defence (online) a day or so later than planned will it make much difference as it is only just over two weeks since I first received the claim?

 

This will give me more time to check it and ensure that is 8000 characters or less for online submission.

thanks again.

P.

 

In the xxxxxxxx County Court

Claim number

 

Between

 

xxxxxxxxxxx- Claimant

and

 

xxxxxxx - Defendant

 

Defence

 

1. 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.

 

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

 

3. The claimants’ Particulars of Claim 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. In this regard I wish to draw the courts attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules Part 18,

including, but not limited to, copies of the documents mentioned in the Particulars of Claim, namely the Credit Agreement, the Notice of Default, and the Notice of Assignment.

 

6. The claimant responded on the xx/xx/2008 to my request for disclosure under the Civil Procedure Rules Part 18 claiming that my legitimate request under the Civil Procedure Rules was in fact a Data Protection Act Subject Access Request, and refused to comply with my legitimate request. The request was send via Special/recorded delivery, and was signed for on xx/xx/2008. Please find attached exhibit 1, a copy of proof of delivery. Since they have refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

7. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the claimant has stated in the letter referred to in point 10 that "we require the statutory £10 administration fee. This is in line with the Subject Access Request rules." As the claimant is perfectly well aware that I requested information under the Civil Procedure Rules which require no fee, it is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me. Please find attached exhibit 2, letter dated xx/xx/xxxx .

8. 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 assess if any agreement the claimant is 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). 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

 

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

10. Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

11. The claimant is therefore put to strict proof that such a compliant document exists

 

12. 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)

 

13. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

14. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

 

15. 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.

 

16. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts’ permission to amend my defence accordingly.

 

17. In addition 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 1999,the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

P.

Edited January 28, 2009 by POPPAY