HBOS and OH's card debt

[surfaceagentx20]

I have had a look at CB's noble letter and have made a few tweaks for your consideration, as follows:

 

Dear Sir,

 

Re :

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated 23rd October, this was received on 30th October 2008.

 

You have indicated that

a) You are giving Formal Notice that your client has instructed you to commence court proceedings against me without delay and

b) Papers are now being prepared for commencement of action through my local court to seek a judgement against me.

 

I am sure that you are aware that I have long since requested from your client, under both the Consumer Credit Act 1974 (The Act) and the Data Protection Act 1998, a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me and whilst I appreciate your client has endeavoured to persuade me that the provision of a copy of an application form is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissable substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your client's persistent, unexplained and willful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted ommisions under Regulation 3(2) excepted), your client has made plain its intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

[2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that your client shall begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me.

 

Should your client elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

 

One further point - has a default notice ever been served?

 

x20

[surfaceagentx20]

Answers:

 

First - Yes

 

Secondly - Yes

 

x20

[surfaceagentx20]

You may use such features as a defence by way of set off, but to the extent that a charge is excessive or penal etc and sounds in a counterclaim which is now statute barred, any such counterclaim is likely to be met with a limitation defence.

 

x20

[surfaceagentx20]

Lexis,

The answer to your query in post no69 is whether you are defending by seeking to set off against the amount claimed a sum of money which is due to you, or whether you are counterclaiming for it. I won't go into the niceties of set offs right now, but it seems to me that a set off is available to you in this case since the charges and contra charges arise out of the one agreement.

 

Another way of looking at it is like this. Suppose a bloke I'd lent £100.00 to ten years ago sued me for £50.00 owing to him by me from three years back. I could theoretically defend the entire claim by saying the £50.00 I gained was in part satisfaction of the debt created ten years ago and I don't owe him a bean. On the other hand I could not counterclaim for £100.00 because my counterclaim would be met with a limitation defence.

 

Is the penny dropping?

 

In short, my suggestion is to employ all (ie from inception of the agreement) excessive charge arguments as a defence by way of set off. I wouldn't bother counterclaiming.

 

I hope this helps and is not getting overly complicated!

 

x20