Northern Rock Unsecured Loan

[Notty]

Thanks creditcard.

[Notty]

Can you please advice me what to put in the defence? Thanks for your help.

[Notty]

Can anyone help please?

[Notty]

I have to have a defence in by the 14th May. Can anyone help me with it please.

[creditcardmug]

Here is a defence, fill in all the xxxs, and rhe date in para 13, send it to the court by special delivery, dont bother sending a copy to the other side

 

 

 

In the xxxxxxxxxxxxx County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

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

 

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

 

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

 

4. The claimants particulars of claim are very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16.

 

5. The claimant has issued proceedings in the xxxxxxxxxxxx County Court therefore according to practice direction 16 Para 7.3

 

7.3 Where a claim is based upon a written agreement

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

6. The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction

 

7. Further more the claimant offers no particulars in relation to how the sums claimant are calculated and no statements are attached with the claim in support of the figures

 

8. 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.

 

 

 

 

 

 

 

 

9. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

10. 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.

 

11. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed 10th April 2009

 

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.

 

12. 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

 

 

13. On DATE I wrote to the claimant requesting information pursuant to CPR 31.14 to date the claimant has failed to respond to my request

 

14. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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

 

 

15. 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

14. 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 mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

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

 

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

 

 

20. 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;"

 

The Need for a Default notice

 

21. It is neither admitted nor 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.

 

22. Notwithstanding point 21, 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)

 

23. 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)

 

 

Conclusion

 

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

 

25. Without Disclosure of the relevant 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

 

26. 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.

 

27. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

[Notty]

Thank you for the defence Creditcard much appreicated. I am not quite sure what to do now as I have received a letter from the solicitor saying they have written to the court and told them to stay their claim. Now I asked the solicitor for a discontinuation notice so what do you think their game is. Do you think I should carry on and send the defence and the cca? If the case is stayed can they not restart it at any time. Not sure if I should just go ahead with the defence and other letters. Thanks again.

[creditcardmug]

Yes you must file the defence, if you dont you have lost, and you will have a ccj, the same thing will happen if you file it late

[Notty]

Sent it today. Is there anything else I should do now. Thanks again for your help.

[creditcardmug]

No its a waiting game now, the court will send a copy of the defence to the other side, who have 28 days to respond

[Notty]

I have received a copy of the allocation questionairre. As there is ppi on this loan ( a one off payment amounting to nearly 50% extra on the loan) and as I am self employed and was never given the option of any other kind of ppi or had it explained to me properly I wonder if I should make the ppi part of the court process that NR have started? Also I have sent off for a copy of the cca on the loan. I have read that if it has ppi on a loan you should also have an agreement for the ppi? Should I also send a cca for the ppi or wait and see what they send me back? I havent mentioned anything about the ppi in the defence.

[creditcardmug]

I have received a copy of the allocation questionairre. As there is ppi on this loan ( a one off payment amounting to nearly 50% extra on the loan) and as I am self employed and was never given the option of any other kind of ppi or had it explained to me properly I wonder if I should make the ppi part of the court process that NR have started? Also I have sent off for a copy of the cca on the loan. I have read that if it has ppi on a loan you should also have an agreement for the ppi? Should I also send a cca for the ppi or wait and see what they send me back? I havent mentioned anything about the ppi in the defence.

 

That was very quick, has it also been transferred to your local court?

[Notty]

Hi Creditcard

I couldnt believe how quick they have sent the AQ. I am going to try and fill it in but will probably have to ask for help with it if that is okay. Also they have not transferred the case to my local court. Do I have to make a request for that?

[creditcardmug]

Has it got the court seal on it? what date does it say you must file by?

[Notty]

Its got a court seal on but as usual you cannot read the date. It says on the Notice that a Defence has been filed, the AQ must be on or before 1st June and return to the Gateshead court. I would prefer a local court but is that too late?

[creditcardmug]

Theres a section in the AQ where you ask for it to be transferred, but you really don't want to wait IMO, write to the court straight away, better still fax them to get it transferred, or both...im not sure if there is a form you can use for this, have a look on HMCS website, see if there is and download it.

 

Is the AQ an N150?

[Notty]

Yes it is the N150 form. I will look for the letter and fax it tomorrow. Why do you think they didnt transfer the case?

[Notty]

I have looked on the courts website and on here but I cannot find a form that is for transferring to my local court. Does anyone know what its called?

[car2403]

I have looked on the courts website and on here but I cannot find a form that is for transferring to my local court. Does anyone know what its called?

 

It's done as part of the AQ - the N150 will have a section that states;

 

B Location of trial

Is there any reason why your claim needs to be heard at a particular court?

 

If Yes, say which court and why?

All you need to do is state "Yes", then state which is your local Court and say that you are a litigant in person and the Claimant is a company carrying on business within the locality of your local Court, so the claim should be transferred there for your convenience.

 

If you wanted to transfer a claim later on in the process, you'd use form N244 (Application Notice) but that isn't applicable in your case.

[creditcardmug]

Yes it is the N150 form. I will look for the letter and fax it tomorrow. Why do you think they didnt transfer the case?

 

Gateshead is a bit close to the home of NR, they are probably on 1st name terms with the court staff...not that im implying anything, you understand;)

 

It might be worth a phone call to the court to ask them, but as car says you can do it in this AQ

[creditcardmug]

Section A tick no to all

4 reasons The claimant has failed to substantiate this claim

Section B tick yes write that you are unable to travel etc.and what car has said

section C tick no. in the box write "please see attached section C"

Section D Write the amount they are claiming, not including costs

applications tick no

witnesses write your name, and in brackets "myself"...in the other box write "all facts"

Experts tick no to the first question, leave the rest blank

Track fast track....leave the box blank

Section E 2 hours....fill in the rest if there are any dates you cant attend

Section F tick yes to 1st question...no to 2nd

Section G leave blank

Section H leave blank

Section I tick yes to the 1st question...no to the second

tick no to applications

in the big box write "please see attached section I"

 

Sign & date it etc.

[creditcardmug]

Pre-Action Protocols

 

Section C

 

 

This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the DATE I wrote to the claimant requesting information pursuant to the CPR Part 31.14, in order that I could investigate their Particulars of Claim, and file a suitable defence. A copy is attached to this form.

 

The claimant has not replied

[creditcardmug]

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(d) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[creditcardmug]

Other Information

 

Section I

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

[creditcardmug]

In the directions, fill in the xxxxs, dont fill in the dates in paras 1 and 4, the judge will do that

 

In the Pre-Action Protocols fill in the date and attach a copy of your CPR letter

 

Print off the last 3 posts, and attach to the AQ

 

Send it to the court by SD, dont bother sending a copy to the other side

[Notty]

Thank you so much for all of your help, brilliant. Just to double check before I send it off tomorrow. Should I mention anything in the directions about the ppi? Also should I mention in the directions the fact that there should be a seperate agreement (found the info under the multi-agreements thread) regarding the ppi? Or should I just leave all of that for now and claim the ppi later? The arrears that they mention in their poc did not exist if you deducted the ppi so just wondered if that was relevant to the case. Would that all be mentioned later in the witness statement? Thanks again.