C L Finance (GE Store card) - Failure to comply with CPR request.**SETTLED BY CONSENT**

[GhostDebt]

Thank you for the reply 42man. I have sent you a PM regardng the default notice.

 

Many thanks

[I've got no money]

We'll need to do the usual response to an SJ - I'm going out now and I'm tied up until tomorrow afternoon - We need to do a skeleton and/or a WS and may need to amend the defence.

 

Unless another Cagger can do it before then I'll install myself in the library tomorrow aftenoon and have a proper look.

 

One observation is that procedurally I don't see how they can deal with a hearing on the 15th - as you are supposed to file any evidence in reply 7 days before the hearing...

 

Does the notice of hearing say how long it is listed for.

 

Can you also copy me in on the PM you sent 42man about the DN

[GhostDebt]

Hello IGNM.

 

Hearing is listed for 30mins.

 

Have also sent you a copy of the PM I sent 42man.

 

I have done a witness statement see post #72 but it needs a bit of tweaking to get in the correct format and the original order by the DJ was for witness statements by the 15th so was going to finalise it over the weekend and post it Monday.

Now we have this hearing notice as well, so I am going to have to do an updated defence over the weekend and submit/post it to the court on Monday as well.

 

I agree procedurally its an absolute mess.

 

Many thanks for your help.

[GhostDebt]

I have spoken to the court who have confirmed that the hearing is on the 15th.

To be clear, this is an application hearing and the Claimant is applying for summary judgement on the grounds that there is no concise statement of defence under CPR 24.2.

I therefore need to submit an updated defence using an N244 with the £40 fee to the court on Monday/Tuesday.

The order made previously by the Judge still stands apparently so I need to send witness statements to the Claimants solicitors by the 15th and I think it would be prudent to send the witness statement to the court with the updated defence.

 

Hope this info helps any further questions please let me know.

Many thanks

Should I send the updated defence to the claimant?

[GhostDebt]

Bump.

[GhostDebt]

Quick note:

1. the first statement from CL is dated before the date on the notice of assignment.

 

2. does the NoA have to be from the OC or can it be from CL

 

3. the balance includes penalty charges/collection costs

 

4. the deed of assignment is somewhat strange in that it says:

This Deed of assignment and assignation is made on ...

2) Assignment and Assignation

In consideration of the payment by the assignee to the assignor of the consideration of £27,658,141.52 the assignor hereby assigns (to the extent assignable) to the assignee on the terms and subject to the conditions contained in the agreement all right, title, interest and benefit of the assignor to or in the debts (brief particulars of which are set out in the schedule to this deed) and the loans and loan terms and conditions related to such debts together with: ....

Is this a securitization issue??

 

5. Does a storecard agreement have to contain information on charges and also have I posted a copy of the agreement up?

 

Hope this info helps and awaiting your further help.

 

I will also post a skeleton argument and draft defence for comments during saturday, but any suggestions in the meantime will be greatly appreciated.

 

Regards

[GhostDebt]

Please could somebody comment on the witness statement in post #72

 

Please could somebody comment on if I should send the information to the claimant as well as the court?

 

Many thanks

[GhostDebt]

Below is my draft Skeleton Argument.

----

 

In the * County Court

 

 

Claim No. *

 

 

 

Between

 

 

(Claimant)

 

 

and

 

 

(Defendant)

 

 

 

This document relates to an Application Hearing scheduled for * on

 

 

* 2009

 

 

 

SKELETON ARGUMENT

 

 

1) I am the defendant in this case and I am a Litigant in Person

 

2) The case is between myself and * which relates to an alleged * Store Card.

 

3). This argument is tendered in response to the witness statement submitted by the claimant. It is intended to be read in conjunction with the defence dated * which has been submitted on *.

 

4) I received a claim form dated * for the sum of £* after receiving a letter from * dated *, informing me that 'You will have now received a County Court Claim in the above manner'

 

FAILURE OF THE CLAIMANT TO ABIDE BY THE PRE-ACTION PROTOCOL

 

5. No notice of the intent by the claimant to pursue a legal action was received before the claimant commenced such action, neither was adequate information to investigate the claim provided by the claimant. I respectfully request that the court considers these issues when it comes to awarding costs.

 

ISSUES SURROUNDING THE PARTICULARISATION OF THE CLAIMANTS CLAIM

 

6. I object that 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 proceeding the alleged cause of action. No particulars are offered in relation to the nature of any account statements to substantiate the amount claimed.

 

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, was not served attached to the claim form.

 

While a copy has been attached to the claimants witness statement and was also included in their disclosure statement, no certificate of service has been provided as required by the Civil Procedure Rules.

 

c) A copy of the purported document or contract of assignment that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, was not been served attached to the claim form

While a copy has been attached to the claimants witness statement and was also included in their disclosure statement, no certificate of service has been provided as required by the Civil Procedure Rules.

 

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

 

UNSUBSTANTIATED CLAIM

 

7) On the * I sent a request for information in accordance with the Civil Procedure Rules to the Claimant and also *. Solicitors. This request included (but was not limited to) copies of all correspondence, credit agreements, statements of account, default notice and Notice/Deed of assignment.

 

Solicitors sent in response a letter dated * stating they are 'not obliged to provide this information.

 

9) As no documentation was forthcoming from the claimant or * Solicitors, on the * I filed a 'holding' defence dated * in response to the Claimants Claim.

 

CLAIM DISPUTED

 

10) The exact amount sought by the Claimant is unknown and is disputed as evidence has not been provided as previously requested nor a breakdown of how the amount was calculated as being owed.

 

11) Unlawful charges by the Claimant have been added to the Claim.

 

UNLAWFUL CHARGES AND INVALID DEFAULT NOTICE

 

12. With regard to paragraph 7 of the claimants witness statement, the claimant has not provided any evidence as to when any default notice was served, or what method that default notice was served.

 

13. I deny that any default notice was ever received by me and put the claimant to strict proof that such a document has been sent.

 

14. Further, I dispute that the default notice was accurate, since the amount claimed contains penalty charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. The Default Notice had to be accurate to be enforceable; the inclusion of penalty charges renders it legally invalid. These facts not withstanding, the default notice served by the claimant is legally invalid for the other reasons detailed in the defence dated. *

 

15. Where not otherwise mentioned, I put the claimant to strict proof of each claim made in both its statement of case, and witness statement. In particular, in paragraphs 1-7, the claimant has provided no notice to adduce hearsay evidence, as required by the Civil Evidence Act 1995. I further question the costs raised by the claimant in paragraph 10, and deny that the claimant has any right of action against me whatsoever.

 

ARGUEMENT

 

16) the Claimants have refused to provide evidence and documents upon request denying myself of the opportunity to file a fully particularised defence or counterclaim in this matter.

 

17) No directions with regard to the submission of an amended defence were included in the order made by * dated *. In my draft order for directions submitted with my N150 Allocation Questionnaire dated *, I suggested a date for the filing of a consequentially amended defence being a date 6 weeks from the making of the case management directions. As the Case Management Conference referred to in the order made by * dated * is currently scheduled for * on the * it is considered that the case management conference would have been the most appropriate time to discuss the filing of a consequentially amended defence.

 

18 As a consequence of the Application made by the Claimant dated *, the defendant has made an application for the submission of a consequentially amended defence.

 

REQUEST FOR COURT ORDER

 

19) That the claimant be required to file and serve the documentation missing to date. These being the statements of the alleged account from the following periods:

*

*

*

These documents to be provided by [date] being a date 4 weeks from the issue of this direction.

 

20) That the defendant upon compliance of the claimant with point 19 above and receipt of these missing documents submits a further consequentially amended defence after having the opportunity to investigate the amount claimed by the claimant further. The further consequentially amended defence to be submitted by [date] being a date 4 weeks after the date referred to in point 19 above.

 

21) That the matter be relisted after compliance with point 20.

 

22) That failure to provide items in accordance with points 19 or 20 above, result in the claim/defence (whichever is applicable) being struck out without further consideration.

 

 

 

Signed: ____________________

 

 

Date: ____________________

 

----

Any comments greatly appreciated.

Edited July 11, 2009 by GhostDebt
Personal details removed

[GhostDebt]

Just got a few more things to add to the defence then I will post it up for comments, bear with me for a little bit.

 

Many thanks.

[Gazza112]

Hi Ghostdept

 

Good luck with your pending Court Case.

 

Gaz

[Goldlady]

Hi GD, firstly I have come across two judges so far who think the notice of assignment can come from the assignee - which is not my interpretation of the LPA 1925 however that seems to be the current thinking.

 

As I am sure you know from my threads on CL they actually backed out of all three of our cases. We were very strong on their breaches of the CPR and actually I am pretty sure they would have had a strong case if they had actually bothered to come to court (but don't tell them that!). We also had an issue with missing statements which I would have emphasised in court. The one with quite a lot of statements missing also had mis-sold PPI on it which I think helped our argument as well.

 

I have only speed-read the last three pages of your thread and wondered if they had actually produced a CCA that is compliant or not? I was somewhat unsure with ours but was very forceful in telling them they had not complied with our CCA requests.

 

Will help further if I can.

[GhostDebt]

DEFENCE

• General Information
  

1. I am the defendant in this case and I am a Litigant in Person.

 

2. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant's Particulars of Claim and puts the Claimant to strict proof thereof.

 

• The Claim
  

3. The Claimant's 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 the Defendant wishes 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 proceeding the alleged cause of action. Also, they do not comply or even attempt to comply with CPR part 16. 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. Furthermore, the claim was issued with no warning, nor any approach to the defendant at all, which is in breach of the Pre-Action Protocols of the Civil Procedure Rules.

 

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, was not 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, was not served attached to the claim form.

 

• Disclosure
  

4. Further to the case, in a letter dated the * sent to the Claimant and the Claimants Solicitor, the Defendant requested 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, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action. Both letters were sent via recorded delivery, for which I have proof of postage and confirmation of receipt.

 

Documents exhibited hereto marked *

 

5. It is therefore averred that until the Order made by * dated * that the claimant was trying to frustrate matters in refusing to disclose the documents requested and the claimant was ignoring the overriding objective and the courts attention is drawn to the fact that the claimant's solicitor has stated in a letter received dated * "We are not obliged to provide this information". It is submitted that the claimant taking this course of action placed me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me. As a consequence of the claimant ignoring my request under the CPR I had to file a 'holding' defence and N150 Allocation Questionnaire asking for additional directions to be made in regard to the claimants non compliance with court procedures and/or abuse of the process of this court as the defendant did not know the case that had to be met. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970. This has also led to additional unnecessary defendants costs being created.

 

Documents exhibited hereto marked *

 

• Court Order by * dated *
  

6. On the * sitting at * County Court, * made orders in relation to this case.

 

Referring to this order and specifically:

2) Disclosure of documents shall be dealt with as follows:

a) Both parties shall give to each other standard disclosure of documents by 4pm on *

b) Any request to inspect the original of a copy document shall be complied with, by *.

 

7. To date the claimant has failed to provide a full set of statements for the alleged account and as a result it is not possible for me to determine the extent to which the amount claimed has been misstated.

The missing statements are from the periods:

From inception of alleged agreement to 01.03.03, 02.04, 07.04, 09.04, 10.04, 12.04, 03.05, 04.05, 05.05, 08.06, 11.06, 12.06, 01.09 to date.

It is not unreasonable for an organisation of the claimants size to expect them to retain this documentation in accordance with their legal obligations for document retention in accordance with:

Sections 5 & 42 of the Limitation Act 1980

Section 222(5) of the Companies Act 1985

Schedule 18, Paragraph 21 to 22 of the Finance Act 1998

 

8. I have made several written attempts to ask the claimant's solicitor when these documents will become available and what reasonable and proportionate attempts have been made to find these documents and to date have received no written correspondence from the claimants solicitor in this matter.

 

9. Also, following my written request and subsequent telephone conversation with * (a representative of *) on the * to view the 'original' of the alleged credit agreement copy document, * confirmed that the claimants solicitor does not have the 'original' of the copy document.

 

10. I have written to * in a letter dated * for confirmation of these matters and for a copy of the telephone call transcript or recording for inclusion in the case file, but to date the claimant has failed to comply with this request.

 

Documents exhibited hereto marked *

Edited July 11, 2009 by GhostDebt
additional text added.

[GhostDebt]

• The Agreement
  

The relevant Act of Parliament in this Case

11. Firstly I will address the issue of which Act is relevant in this case, in case it is 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

12. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Excerpt taken from Consumer Credit Act 2006 (c. 14) - Statute Law:

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.

13. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 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

15. It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with 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

16. 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 misstated. 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."

17. 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

18. Notwithstanding points 14 and 15, any such agreements must be signed in the prescribed manner by both debtor and creditor. 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

• The Amount Claimed
  

19. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly and in addition to point 15, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment, that is inaccurate, W.F.Harrison & Co Ltd v Burke [1956].

20. Further, it is averred that during the period in which the 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 costs 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 relate 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.

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

Documents exhibited hereto marked *

• The Assignment
  

22. I have since researched notices of assignment and the provisions of the Law of Property Act 1925. I now understand that the Law of Property Act 1925 (LPA 1925) sets out specific guidelines for the issue of a notice of assignment. Specific to this case is the fact that s136 of the statute states that the notice of assignment must be written by the assignor personally. The notice of assignment I received as stated above was from claimant and not OC.

Secondly the assignment only operates under the Act as from the date of the notice, that is, the date on which it is received by or on behalf of the debtor (see Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA.

23. Based on the copy of the notice of assignment dated * and the statement dated * submitted by the Claimant within their disclosure statement and subsequent witness statement the Claimant sought to obtain payment for the alleged debt before it had been assigned to them. Also, since the claimant has failed to comply with s196 of the LPA 1925 which requires the Notice of Assignment to be issued by a form of personal delivery, I put the claimant to strict proof that the notice of assignment was served in accordance with s196 of the LPA 1925 which is required to give the claimant a legitimate right of action in their own name since this is an assigned debt.

The defendant notes that the errors in the assignment leave it rendered in effectual in law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 and as such the Claimant has no legal right to claim monies allegedly owed.

Documents exhibited hereto marked *

• The Default Notice
  

24. The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

25. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

26. Notwithstanding point 16 and 17, 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)

which state:

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.

27. I note the Default Notice provided by the claimant in their disclosure statement and also in their witness statement is also deficient in the following areas:

28. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

29. The notice fails to include the following statement in the form as shown

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

30. Also the notice fails to set out the statement as set out below

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

[can someone show me which bits should be underlined please]

31. The statements referred to in points 29 & 30 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

32. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(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.

33. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

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

The word 'must' makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. Where the term De Minimus refers to An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

34. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

35. The breach referred to on the Default notice relates to arrears on the alleged account and since these have been grossly misstated by the Claimant demanding repayment of the balance in full and not the actual arrears on the alleged account this matter cannot be dispensed with as a De Minimus issue and again the default notice is rendered invalid as a consequence.

36. 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

37. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

38. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

Documents exhibited hereto marked *

[GhostDebt]

• Other Information
  

39. The Defendant neither admits or denies entering into an agreement with *, which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which G E Capital Bank Limited may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

40. Without prejudice to the generality of the Defendant’s contentions set out at paragraph 39, the Defendant avers * and/or the Claimant terminated the agreement and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

41. Further and in any event, by reason of the matters set out at paragraph 9 of this Defence and the requirements of section 87(1) of the Act, the steps taken by G E Capital Bank Limited and/or the Claimant and identified at paragraph 4 hereof were steps which neither were entitled to take.

42. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [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;"

• Evidence
  

43. If 'copies' of any of the documents referred to in this case are to be relied on in court rather than 'originals', a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act is required, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

44. I would also bring to the courts attention the following:

Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems, BIP 0008:2004 (previously PD 0008 ) issued by the British Standards Institution (BSI).

 

This Code of Practice provides guidelines to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The basis of the guidelines are that process under which documents are managed are as important as the technology used, for example where a document is printed, it should accurately reproduce the contents of the "original". The Civil Evidence Act (1995) introduces a flexible system whereby all documents and copy documents, including computer records, can be admitted as evidence in civil proceedings. A judge will still have to be persuaded to treat that evidence as reliable, therefore organisations will have to prove the authenticity and reliability of the record.

 

The key principles behind BIP 0008 are:

• Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.
  
• Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed.
  
• Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.
  

45. In light of point 9 above, I therefore put the claimant to strict proof that the documents they are relying upon in this claim are compliant with the key principles of points 43 & 44 above and that failure to supply this proof renders the evidence inadmissible.

• The Claimants Witness Statement
  

46. With reference to paragraph 3 of the claimants witness statement, the claimant has made no attempt to adduce hearsay evidence as required by the Civil Evidence Act 1995. As a consequence the document marked SJH1 should be set aside as per point 45 above.

47. With reference to paragraph 5 of the claimants witness statement and point 23 listed above, the witness has admitted that the assignment was issued after the claimant first started to demand monies due under the alleged agreement.

48. With reference to paragraph 7 of the claimants witness statement, the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

49. With reference to paragraphs 1 - 7 of the claimants witness statement, the claimant has made no attempt to adduce hearsay evidence as required by the Civil Evidence Act 1995.

50. With reference to paragraph 8 of the claimants witness statement, the witness has inferred that the documents provided by the claimant are 'true' copies. As stated in point 9 above the claimant's solicitor does not have the 'original' of the copy documents and I require the witness to explain how he can state a 'true' copy has been provided when he has not had sight of the 'original' agreement. If the witness has had sight of the 'original' agreement I would like to know why the claimants solicitor has failed to comply with my requests and the Order made by * dated * listed in point 6 above.

• Conclusion
  

51. Unless proved otherwise the claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a credit agreement is inadmissible as evidence in this case.

52. The claimant has not been correctly assigned this alleged account and has no legal right of action for the aforementioned account.

W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 refers.

53. The claimant has not complied with the requirements to issue a valid default notice, and the claimant should not be bringing this action before the court.

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.

54. In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement and costs/counterclaim be awarded in favour of the defendant.

55. The Claimant’s claim to be entitled to £*, to interest or to any other sum is denied.

• Counterclaim
  

56. The defendant counterclaims costs to date, to be summarily assessed in accordance with Practice Direction 48.6 and at the appropriate rate.

57. The defendant counterclaims for damages in relation to the anxiety the harassment of the Claimant has caused the Defendant in accordance with Section 40 of the Administration of Justice Act 1970.

The court should summarily assess an appropriate level of award for damages.

58. The defendant counterclaims for damages to his credit worthiness by the claimants actions in issuing an invalid default notice and recording inaccurate information with the Credit reference agencies whilst having terminated the account in a manner which is an unlawful rescission of contract.

For clarification of the extent to which damages can be awarded the court should make reference to:

Kpohraror v Woolwich Building Society 1996 4All ER 119

King v British Linen & Co (1899) 1F 928

Wilson v United Counties Bank Limited. [1920] AC 102

Richard Durkin v DSG Retail Limited and HFC Bank Plc

and summarily assess an appropriate level of award for damages.

• Statement of Truth
  

I *, The Defendant, believe the above statement to be true and factual.

Signed ..................... Date .....................

[GhostDebt]

Thank you for your reply GoldLady I trust all is well.

 

The alleged agreement appears to be ok but all the claim collapses as detailed in the defence submitted in the above posts.

 

Really appreciate your comments.

 

Many thanks.

[Gazza112]

Hi Ghostdept & Goldlady

 

Received my Court Papers today, fighting CL Finance.

Just wanted to ask, i've been asking for papers from these morens since March and still not received any paperwork back from them to this date.

Did either of you two have trouble getting documents out of CL Finance.

 

Gaz

[I've got no money]

Hi GD, firstly I have come across two judges so far who think the notice of assignment can come from the assignee - which is not my interpretation of the LPA 1925 however that seems to be the current thinking.

 

The LPA doesn't say who the Notice should come from however Holt v Heatherfield Trust [1942] 2 KB 1 is authority for the proposition that it can come from either the assignor or assignee (see Treitel "An outline of the law of Contract" (sixth edition at page 274)

[I've got no money]

Apologies for not having a look yesterday but I got tied up...I'll have a proper look now

[I've got no money]

Evening everyone below is my compiled witness statement.

----

I am the Defendant in this case.

 

 

* Letter posted to both the Claimant, C L Finance Ltd and their Solicitor, Howard Cohen & Co. Solicitors via recorded signed for delivery requesting disclosure of information under the Civil Procedure Rules.

 

 

Letter from Howard Cohen & Co. Solicitors dated *, informing me that in response to my request for information in accordance with the Civil Procedure Rules that 'We are not obliged to provide this information'.

 

* 'Holding' Defence posted to * CCBC as a result of the Claimants failure to comply with my CPR request.

.

 

Letter from Howard Cohen & Co. Solicitors dated *, offering a reduced settlement provided the amount is paid in one instalment within 14 days.

 

 

Letter from Howard Cohen & Co. Solicitors dated * including Disclosure Statement & List of Documents.

 

* Disclosure Statement and List of Documents posted to Howard Cohen & Co. Solicitors via guaranteed by 1pm Next day delivery. Also included was a covering letter dated * asking for missing documentation and making a formal request to view the 'original' alleged credit agreement in accordance with the order made by * dated *

 

Letter from Howard Cohen & Co. Solicitors dated * referring to the standard disclosure index and stating that should I wish to view a 'copy' of the alleged credit agreement to contact your office to make an appointment.

 

* Contacted Howard Cohen & Co. Solicitors via telephone to discuss their letter dated *. The purpose of the telephone call was to discuss why you had not provided copies of all the statements relating to the alleged account to which * stated that they are not in your possession. I also discussed with your representative that my formal request to view the 'original' alleged credit agreement was not a request to view a 'copy' which you had already disclosed. When asked if you have the 'original' alleged credit agreement * that you only have a scanned 'copy' and not the 'original' alleged agreement.

 

* Confirmation of telephone call letter posted to Howard Cohen & Co. Solicitors via guaranteed by 1pm Next day delivery. The contents of the letter reiterate the points detailed in the above telephone conversation and ask for your written confirmation by return along with a copy of the telephone call recording or transcript (if available) for inclusion in the case file.

 

Letter from Howard Cohen & Co. Solicitors dated * enclosing a 'true copy' of the extract of the Deed of Assignment.I don't know what you mean by the extract of the deed - can you post the whole deed...

---

Could somebody please have a look and let me know if this looks ok?

 

Many thanks.

 

I don't understand what this is...a witness statement is a document through which you give evidence. Essentially you make specific factual comments - its' a bit like the one that I prepared for supasta

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/182664-help-i-have-just-17.html#post2272598

 

As far as the general content that you've included goes I've deleted some of the stuff that I don't think needs to go in a WS - you also need to put it all in properly numbered paragraphs

[I've got no money]

Below is my draft Skeleton Argument.

----

 

In the * County Court

 

 

Claim No. *

 

 

 

Between

 

 

(Claimant)

 

 

and

 

 

(Defendant)

 

 

 

This document relates to an Application Hearing scheduled for * on

 

 

* 2009

 

 

 

SKELETON ARGUMENT

 

 

1) I am the defendant in this case and I am a Litigant in Person

 

2) The case is between myself and * which relates to an alleged * Store Card.

 

3). This argument is tendered in response to the witness statement submitted by the claimant. It is intended to be read in conjunction with the defence dated * which has been submitted on *.

 

4) I received a claim form dated * for the sum of £* after receiving a letter from * dated *, informing me that 'You will have now received a County Court Claim in the above manner'

 

FAILURE OF THE CLAIMANT TO ABIDE BY THE PRE-ACTION PROTOCOL

 

5. No notice of the intent by the claimant to pursue a legal action was received before the claimant commenced such action, neither was adequate information to investigate the claim provided by the claimant. I respectfully request that the court considers these issues when it comes to awarding costs.

 

ISSUES SURROUNDING THE PARTICULARISATION OF THE CLAIMANTS CLAIM

 

6. I object that 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 proceeding the alleged cause of action. No particulars are offered in relation to the nature of any account statements to substantiate the amount claimed.

 

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, was not served attached to the claim form.

 

There is no requirement for claims issued out of the CCBC to have any docs attached to them - that requirement only applies to claims issued from normal county courts

 

While a copy has been attached to the claimants witness statement and was also included in their disclosure statement, no certificate of service has been provided as required by the Civil Procedure Rules.

 

c) A copy of the purported document or contract of assignment that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, was not been served attached to the claim form

While a copy has been attached to the claimants witness statement and was also included in their disclosure statement, no certificate of service has been provided as required by the Civil Procedure Rules.

 

Again the CPR do not require docs to be attached where the claim is issued by the CCBC

 

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

 

UNSUBSTANTIATED CLAIM

 

7) On the * I sent a request for information in accordance with the Civil Procedure Rules to the Claimant and also *. Solicitors. This request included (but was not limited to) copies of all correspondence, credit agreements, statements of account, default notice and Notice/Deed of assignment.

 

Solicitors sent in response a letter dated * stating they are 'not obliged to provide this information.

 

9) As no documentation was forthcoming from the claimant or * Solicitors, on the * I filed a 'holding' defence dated * in response to the Claimants Claim.

 

CLAIM DISPUTED

 

10) The exact amount sought by the Claimant is unknown and is disputed as evidence has not been provided as previously requested nor a breakdown of how the amount was calculated as being owed.

 

11) Unlawful charges by the Claimant have been added to the Claim.

 

UNLAWFUL CHARGES AND INVALID DEFAULT NOTICE

 

12. With regard to paragraph 7 of the claimants witness statement, the claimant has not provided any evidence as to when any default notice was served, or what method that default notice was served.

 

13. I deny that any default notice was ever received by me and put the claimant to strict proof that such a document has been sent.

 

14. Further, I dispute that the default notice was accurate, since the amount claimed contains penalty charges, which are unlawful at Common Law, under (UCTA is not relevant) and The Unfair Terms in Consumer Contracts Regulations 1999. The Default Notice had to be accurate to be enforceable; the inclusion of penalty charges renders it legally invalid. These facts not withstanding, the default notice served by the claimant is legally invalid for the other reasons detailed in the defence dated. *

 

15. Where not otherwise mentioned, I put the claimant to strict proof of each claim made in both its statement of case, and witness statement. In particular, in paragraphs 1-7, the claimant has provided no notice to adduce hearsay evidence, as required by the Civil Evidence Act 1995. I further question the costs raised by the claimant in paragraph 10, and deny that the claimant has any right of action against me whatsoever.

 

ARGUEMENT

 

16) the Claimants have refused to provide evidence and documents upon request denying myself of the opportunity to file a fully particularised defence or counterclaim in this matter.

 

17) No directions with regard to the submission of an amended defence were included in the order made by * dated *. In my draft order for directions submitted with my N150 Allocation Questionnaire dated *, I suggested a date for the filing of a consequentially amended defence being a date 6 weeks from the making of the case management directions. As the Case Management Conference referred to in the order made by * dated * is currently scheduled for * on the * it is considered that the case management conference would have been the most appropriate time to discuss the filing of a consequentially amended defence.

 

18 As a consequence of the Application made by the Claimant dated *, the defendant has made an application for the submission of a consequentially amended defence.

 

REQUEST FOR COURT ORDER

 

19) That the claimant be required to file and serve the documentation missing to date. These being the statements of the alleged account from the following periods:

*

*

*

These documents to be provided by [date] being a date 4 weeks from the issue of this direction.

 

20) That the defendant upon compliance of the claimant with point 19 above and receipt of these missing documents submits a further consequentially amended defence after having the opportunity to investigate the amount claimed by the claimant further. The further consequentially amended defence to be submitted by [date] being a date 4 weeks after the date referred to in point 19 above.

 

21) That the matter be relisted after compliance with point 20.

 

22) That failure to provide items in accordance with points 19 or 20 above, result in the claim/defence (whichever is applicable) being struck out without further consideration.

 

 

 

Signed: ____________________

 

 

Date: ____________________

 

----

Any comments greatly appreciated.

 

I've made a couple of comments in bold black

 

I think that are other issues that may need to be included - I haven't seen the Notice of Assignment - did it have an amount on it - were you actually ever served with it...

 

The other thing is that the draft defence that you've produced is an amended defence - you need permission to amend - I'd ask for that in the skeleton

 

I'd have thought that your skeleton needs to be along the lines of the one that I used.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147612

Edited July 12, 2009 by I've got no money

[GhostDebt]

Hello IGNM

Thanks for your reply will post up the info they sent shortly

Regards

[I've got no money]

I think that the defence is a bit long and includes a lot of law that doesn't have to be there - whilst the defence that I've used in my case with Arrow is far from perfect I think that your amended defence needs to a bit more like it

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147014

 

I'm more than happy to have a chat about the best way forward and to make suggestions for amendments

[GhostDebt]

Here is the extract from the DoA sent.

 

Page 1

 

 

Page 2 says

(F) the benefit of all covenants obligations and undertakings from borrowers under the loan terms and conditions (insofar as the same relate to the debts

(G) the benefit of all judgements orders and awards of any court (including but not limited to any charging orders) in relation to debts in so far as the same remain unsatisfied or in effect (as the case may be) as at the assessment date: and

(H) the benefit of any rights title interests power and benefits in to under pursuant to or in relation to the debts under the related loan terms and conditions

 

3 Effect of Completion

 

Except to the extent that they have performed and except where this deed provides otherwise the obligations contained in the agreement remain in full force and effect notwithstanding completion of this assignment

 

In witness thereof the assignor has excecuted this assignment as a deed the day and year first above written.

 

executed as a deed by ... with 2 x signatures

 

page 3 says

Schedule

Brief particulars of debts

name of borrowers

account number

amount of debt as at the assignment date according to the assignors latest available records

(these are shown as column headers)

 

under which is written - see attached compact disc

 

Page 4 says

account

balance

name

(as column headers)

under which is the account number, amount and my name

 

Regards

[I've got no money]

That sounds like only part of the assignment - you need to see all of it - the bit that they have disclosed doesn't give you sufficient information to form a view as to whether it is valid or not.

 

The other thing - and I could be wrong (because my Company Law is a bit rusty) - I thought that if a Company executes a deed it must do so by affixing its' common seal which must be countersigned by the Company Secretary and a Director.

 

S136 - says an assignment must be in writing and under the hand of the assignor. A Company does not have a hand but it does have a Company Seal...

[GhostDebt]

the end of page 2 says

 

Executed as a deed by

 

GE Capital Bank Limited

by the director and its secretary/two

directors

 

and has two signatures on it