"santander" Responsible Lending!!!!!!!

[cab1ne]

cab1ne,

 

Here is my suggestion of what to enter as your defence.

 

Please make sure that you understand it.

 

You haven't said when the agreement commenced. Para 8 is only relevant your agreement commenced before the relevant date

i can't say when the agreement started, they have never sent one, however the statement of account shows a "starting card balance" going back to 29/06/1997, but the statement date only goes back to 4th July 2009.

 

It is noted that the Claimant has failed to comply with the order of District Judge Wall dated 8 October 2010. The Claimant was ordered to serve, among other things, a copy of the credit agreement relied upon and a copy of the notice of assignment with evidence as to service.

they have sent a copy of the assignment but have not sent proof of service

 

As a result, I would respectfully request that the court consider using it's powers to strike out the claim. As I am a Litigant in Person it would unfairly prejudice me if the Claimant will not disclose the documents that it seeks to rely on and are vital to it's case.

NICE ONE, THANKYOU

 

In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and Santander Cards, secondly that such an agreement complied with the requirements of the Consumer Credit Act 1974 (“the 1974 Act”) and all consequential regulations made thereunder, both at the date of inception and at all times thereafter. Thirdly it must establish that Santander Cards complied with all of the provisions of the 1974 Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement. Fourthly, it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

NICE ONE, THANKYOU

 

It is submitted that it is the obligation of the Claimant to prove all of the above matters.

NICE ONE, THANKYOU

 

Existence of a Written Agreement

 

It is accepted that I applied for a credit card with Santander Cards and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

NEVR HAD ONE TO EVEN ARGUE WITH.

 

In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) of the 1974 Act are not repealed in respect of this alleged agreement and therefore render it unenforceable.

THATS PROBABLY WHY I DONT HAVE ONE.

 

The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell[2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the 1974 Act and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

Further, it is noted that the 1974 Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

I WON A SUMMARY JUDGEMENT ON THAT ONE YESTERDAY

 

It is a condition that prior to the issue of Proceedings in respect of a Regulated agreement that certain steps must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the 1974 Act and the issue of a valid termination notice, also complying with the act.

THEY HAVE SUPPLIED A DEFAULT NOTICE, BUT THEY HAVENT SUPPLIED A TERMINATION NOTICE.

 

It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

THE DEFAULT IS NOT VALID AS IT STATES "14 DAYS" AND NOT A SPECIFIED DATE.

It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101).

NICE ONE, THANKYOU

 

The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

VERY VERY NICE ONE, THANKYOU

 

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

I WOULD ASSUME THE COPY SUPPLIED WOULD CONVICE A COURT THAT ONE DOES EXIST, HOWEVER, I WOULD ALSO ASSUME THE PROOF OF SERVICE WILL NEVER EXIST.

 

It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

NICE ONE, THANKYOU

 

Further, it is denied that any alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and, in any event, unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.

NO CHARGES HAVE BEEN ADDED. (MOST UNUSUAL)

 

In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

THEY HAVE NOT SUPPLIED AN AGREEMENT,

THEY HAVE NOT SUPPLIED ANY PROOF OF SERVICE,

THEY HAVE NOT ADHERED TO THE COURT ORDER,

 

do you think it my be worth asking for a strike out on the lack of an agreement and no proof of service.

 

cab

[cab1ne]

"OK"

JUST A QUICK ATTEMPT

 

any alterations or suggestions would be greatly appreciated.

 

DEFENCE

 

CLAIM NUMBER: XXXXXXXXX

 

IN THE MANSFIELD COUNTY COURT

CL Finance Ltd (Claimant)

AND

 

Mr. Cab1ne (Defendant)

1. I, Cab1ne am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited.

 

2. This is an amended defence and counterclaim that supersedes the ‘Embarrassed’ defence filled 4th September 2010

 

3. The statements made in this defence are in reply and opposition to the Claimants subsequent non compliance of my request to supply copies of all the documents the claimant relies upon, and pursuant to Civil Procedure Rules 31.14 dated: 23rd August 2010. (XX-01) And court order dated: 8th October 2010. (XX-02)

 

 

4. The claimant has supplied to the defendant a copy of:

 

(A). Copy Letter dated: 23rd October 2010. (XX-03).

 

(B). Statements of Account referring to an account that started on 29th June 1997, (XX-04)

 

(C). Default Notice dated: 20th February 2010. (XX-05).

 

(D). Notice of Assignment dated: 8th July 2010 (XX-06).

 

Statement of Account

 

5. The Statements of account are only partial and refer to an account that started on 29th June 1997,

6. The periods covered on the statement of account are as follows:

4th January 2009, 4th February 2009, 4th June 2008, 4th July 2009,

4th September 2009, 4th October 2009, 4th December 2009,

4th March 2010, 4th April 2010, 4th May 2010, 4th June 2010, 4th July 2010,

The Default Notice

 

7. The Claimant has failed to provide a Default Notice that is compliant with section 87 and 88 of the Consumer Credit act 1974.

 

The default notice clearly states that:

To remedy this breach you must pay the arrears within “14 days” from receipt of this notice.

The act clearly states that:

87 .

(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,

88 .

(1). the default notice must be in the prescribed form and specify.

(2). A date specified under subsection (1) must not be less than fourteen days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1) before those fourteen days have elapsed.

The Assignment

 

8. Under section 136 of the Law of Property Act 1925 the assignor, or assignee, must notify the debtor in writing and this must be affected in law via section 196 of the Act in order to lawfully attain the right to issue proceedings.

9. The Claimant has failed to provide proof of service or proof of posting. As a consequence of the claimant’s failure to serve a Notice of Assignment, the Claimant has no right to bring this action is his own name.

 

 

The Agreement

 

10. The claimant has not supplied to the defendant a copy of an agreement or any terms and conditions relevant to the alleged agreement.

 

11. The result of this failure, is that I am unable to file a fully particularised amended defence to the claimants claim as without the documentation which the Claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person.

 

12. The defendant respectfully requests that: pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) the claim is struck out and the Claimant be ordered to pay the defendants costs, to be summarily assessed.

 

 

Statement of Truth

 

 

I Cab1ne, believe the above statement to be true and factual

 

 

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

 

Date xxxxx

 

Edited February 2, 2011 by cab1ne

[nicklea]

That's why I said to read and understand it in case I had made any mistakes or false assumptions.

 

With regards to asking for the claim to be struck out that is what para 4 says right at the start of the defence.

 

I am sure that you can rewrite and edit as necessary, but just a couple of small points.

 

Given that the agreement commenced so long ago, Santander wasn't around then so omit that from para 7. So:-

 

It is accepted that I applied for a credit card with Santander Cards and that an Application Form was completed.

 

becomes:-

It is accepted that I applied for a credit card and that an Application Form was completed.

 

Also, with the actual assignment where you say:-

 

I WOULD ASSUME THE COPY SUPPLIED WOULD CONVICE A COURT THAT ONE DOES EXIST, HOWEVER, I WOULD ALSO ASSUME THE PROOF OF SERVICE WILL NEVER EXIST.

 

Anyone - and I do mean ANYONE - can send you a notice of assignment. I could send you a notice of assignment saying that you have to pay me. So how are you supposed to know that the debt has been sold to me and you have to pay me? The Van Lynn case is authority that you are allowed to see the actual contract - that is the actual assignment - between Santander and CL Finance to assure yourself that the contract is all ok.

 

You will also find examples of assignments that have allegedly been made to companies that didn't actually exist at the time or to different companies within the group - all of this has happened to posters here. Of course, when things like this happen it means that the assignment is ineffective in law.

 

You would not find any of this out if you did not check the actual assignment - that is the contract between Santander and CL Finance - for yourself.

[nicklea]

cab1ne

 

A few points,

 

I really would suggest that you make reference in your defence to the two court orders. It makes it clear why you are making an amended defence and also highlighting that the Claimant has failed to comply with a previous court order.

 

Rather than going on about what the claimant has supplied I would suggest that it would be better to emphasis what the claimant has FAILED to supply - that is what is important to your defence. Make it easy for the judge to understand your argument.

 

Again, don't expect judges to be fully aware of all the laws, you really have to spell it out. That is what para 5 of my suggested defence is doing.

 

With the assignment, again, I would suggest that it is better to spell out exactly what they need to have done - make it easy for the judge to understand your defence. If you don't put it in your defence then I would suggest that you need to properly argue it in a skeleton argument.

 

I would suggest that they have supplied you with enough that you can raise a fully particularised defence - I would suggest that my suggested defence is just that.

 

Overall, I would really just say try and make it easy for the judge to understand what points you are trying to make - it will then be a lot easier for you.

[cab1ne]

That's why I said to read and understand it in case I had made any mistakes or false assumptions.

 

With regards to asking for the claim to be struck out that is what para 4 says right at the start of the defence.

 

I am sure that you can rewrite and edit as necessary, but just a couple of small points.

 

Given that the agreement commenced so long ago, Santander wasn't around then so omit that from para 7. So:-

 

It is accepted that I applied for a credit card with Santander Cards and that an Application Form was completed.

 

becomes:-

It is accepted that I applied for a credit card and that an Application Form was completed.

 

Also, with the actual assignment where you say:-

 

I WOULD ASSUME THE COPY SUPPLIED WOULD CONVICE A COURT THAT ONE DOES EXIST, HOWEVER, I WOULD ALSO ASSUME THE PROOF OF SERVICE WILL NEVER EXIST.

 

Anyone - and I do mean ANYONE - can send you a notice of assignment. I could send you a notice of assignment saying that you have to pay me. So how are you supposed to know that the debt has been sold to me and you have to pay me? The Van Lynn case is authority that you are allowed to see the actual contract - that is the actual assignment - between Santander and CL Finance to assure yourself that the contract is all ok.

 

You will also find examples of assignments that have allegedly been made to companies that didn't actually exist at the time or to different companies within the group - all of this has happened to posters here. Of course, when things like this happen it means that the assignment is ineffective in law.

 

You would not find any of this out if you did not check the actual assignment - that is the contract between Santander and CL Finance - for yourself.

 

sorry nicklea, i was knocking up a defence as you answered,

 

the problem for me is, i never applied for a credit card.

 

back in 1997 i bought a pda off the internet from a company called MNC (my new cheap) in manchester, and the account they refer to as a credit card account is the same account that goes back to 1997.

 

this was purchased through a web application called "ABLE2BUY" and the finance company was at the time GE MONEY.(now santander)

 

cab

[cab1ne]

cab1ne

 

A few points,

 

I really would suggest that you make reference in your defence to the two court orders. It makes it clear why you are making an amended defence and also highlighting that the Claimant has failed to comply with a previous court order.

 

Rather than going on about what the claimant has supplied I would suggest that it would be better to emphasis what the claimant has FAILED to supply - that is what is important to your defence. Make it easy for the judge to understand your argument.

 

Again, don't expect judges to be fully aware of all the laws, you really have to spell it out. That is what para 5 of my suggested defence is doing.

 

With the assignment, again, I would suggest that it is better to spell out exactly what they need to have done - make it easy for the judge to understand your defence. If you don't put it in your defence then I would suggest that you need to properly argue it in a skeleton argument.

 

I would suggest that they have supplied you with enough that you can raise a fully particularised defence - I would suggest that my suggested defence is just that.

 

Overall, I would really just say try and make it easy for the judge to understand what points you are trying to make - it will then be a lot easier for you.

 

good points nicklea,

 

i will adjust the above defence to suit,

 

thankyou for being constructive,

 

cab

[cab1ne]

having a problem at this point, as they have never supplied an agreement.

 

8. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) of the 1974 Act are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

cab

[nicklea]

An agreement does not have to be in writing. A verbal agreement can be enforceable. However, things are different with regulated credit agreements.

 

The bit you underline in red above just says that you made an agreement with whoever it was before 2007.

 

However, the CCA says that for them to enforce the agreement in court then there MUST be a written agreement with your signature on it and, depending on what type of credit it was, eg loan or credit card, then that agreement MUST have certain things on it.

 

If they cannot supply a copy of the agreement with your signature on it and/or the agreement does not contain the necessary terms then they are stuffed.

 

This is what para 8 says.

[cab1ne]

An agreement does not have to be in writing. A verbal agreement can be enforceable. However, things are different with regulated credit agreements.

 

The bit you underline in red above just says that you made an agreement with whoever it was before 2007.

 

However, the CCA says that for them to enforce the agreement in court then there MUST be a written agreement with your signature on it and, depending on what type of credit it was, eg loan or credit card, then that agreement MUST have certain things on it.

 

If they cannot supply a copy of the agreement with your signature on it and/or the agreement does not contain the necessary terms then they are stuffed.

 

This is what para 8 says.

 

ok,

i'll post up a defence in a mo

 

cab

[cab1ne]

ok, taking away what the claimant has supplied and concentrating on what they have'nt supplied, here goes

 

1. I, Cab1ne am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited.

 

2. This amended defence is submitted following the order of Deputy District Judge Maybury dated 18th January 2011.

 

3. It is noted that the Claimant has failed to comply with the order of District Judge Wall dated 8th October 2010. The Claimant was ordered to serve, among other things, a copy of the credit agreement relied upon and a copy of the notice of assignment with evidence as to service.

 

4. The Claimant has failed to serve these items. These documents are vital to the claim and go to the heart of the issue in this case. Lack of these documents and evidence as to service prior to proceedings being commenced are fatal to the Claimant's claim.

Existence of a Written Agreement

 

5.The absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) of the 1974 Act are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

6. The Court’s attention is drawn to the authority of:

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

Wilson & Ors v Secretary of State for Trade and Industry (2003).

Both of which confirm that where a document does not contain the required prescribed terms under the 1974 Act and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

7. Further, it is noted that the 1974 Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement.

(Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

The Assignment of the Debt

8. It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101).

9. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

136. Legal assignments of things in action.

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice.

10. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

11. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

12. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

13. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge.

(Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

14. Finally the claimant must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

15. The defendant submits that: It is the obligation of the Claimant to prove all of the above matters.

16. As a result, The defendant respectfully requests that: pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) the claim is struck out and the Claimant be ordered to pay the defendants costs, to be summarily assessed.

 

cab

 

[nicklea]

Just one small point. In the first instance of making reference to the 1974 Act you should instead say:-

 

the Consumer Credit Act 1974 (“the 1974 Act”)

 

You will see that this is how I refered to it in my para 5 and then refered to it as the 1974 Act after that. This is done to make it easier to read/write. However, you do need to actually say what the Act is as there were quite a few acts passed in 1974

[cab1ne]

Just one small point. In the first instance of making reference to the 1974 Act you should instead say:-

 

the Consumer Credit Act 1974 (“the 1974 Act”)

 

You will see that this is how I refered to it in my para 5 and then refered to it as the 1974 Act after that. This is done to make it easier to read/write. However, you do need to actually say what the Act is as there were quite a few acts passed in 1974

 

3. It is noted that the Claimant has failed to comply with the order of District Judge Wall dated 8th October 2010. The Claimant was ordered to serve, among other things:

A copy of the “Credit Agreement”. Compliant With the Consumer Credit Act 1974.(“The Act”)

A copy of the notice of assignment with evidence as to service.

 

4. The Claimant has failed to serve these items. These documents are vital to the claim and go to the heart of the issue in this case. Lack of these documents and evidence as to service prior to proceedings being commenced are fatal to the Claimant's claim.

[debbbbsy]

I dealt with HC. They do like to push as much as possible. When I got to this stage, no DN & no agreement they sent a letter advising me to withdraw my defence or else....lots of costs blah blah & they hadn't complied with a "draft Order" from the judge.

I sent a strong letter, advising them to "Discontinue" otherwise I was going to hit them with all my costs.

 

5 days later, letter from court HC had "Discontinued". With these people, you basically have to shout in there faces for them to get the point.

 

Debs

[cab1ne]

I dealt with HC. They do like to push as much as possible. When I got to this stage, no DN & no agreement they sent a letter advising me to withdraw my defence or else....lots of costs blah blah & they hadn't complied with a "draft Order" from the judge.

I sent a strong letter, advising them to "Discontinue" otherwise I was going to hit them with all my costs.

 

5 days later, letter from court HC had "Discontinued". With these people, you basically have to shout in there faces for them to get the point.

 

Debs

 

thanx deb,

my situation is identical to yours. have you had any come back since then.

 

cab

[Bigdebtor]

CAB

 

I didn't realise you were fighting so many battles at the same time - whilst a lot smaller than you're repossession cas ethis is till worth fighting just as you're doing. I look forward to seeing your ultimate victories!

 

Well done so far!

 

BD

[cab1ne]

Thanx BD,

a bit of a claim magnet "Lol"

 

submitted my defence as below,

 

1. I, Cab1ne am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited.

 

2. Copy documents supplied by the claimant are enclosed with this defence:

A copy letter dated: 23rd September 2010

A default notice dated: 20th February 2010

A notice of assignment dated: 8th July 2010

A statement of account covering: 4th January 2009 to 4th July 2010

3. This amended defence is submitted following the order of Deputy District Judge Maybury dated 18th January 2011.

 

4. It is noted that the Claimant has failed to comply with the order of District Judge Wall dated 8th October 2010. The Claimant was ordered to serve, among other things:

A copy of the “Credit Agreement”. Compliant With the Consumer Credit Act 1974. (“The Act”)

Evidence as to service of the notice of assignment.

 

5. The Claimant has failed to serve these items. These documents are vital to the claim and go to the heart of the issue in this case.

Existence of a Written Agreement

 

6. The absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) of the 1974 Act are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

7. The Court’s attention is drawn to the authority of:

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

Wilson & Ors v Secretary of State for Trade and Industry (2003).

Both of which confirm that where a document does not contain the required prescribed terms under the 1974 Act and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

8. Further, it is noted that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a), (b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement.

(Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

The Assignment of the Debt

 

9. It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101).

 

10. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice.

 

11. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:

 

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

12. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

13. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

14. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge.

(Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

15. Finally the claimant must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

16. The defendant submits that: It is the obligation of the Claimant to prove all of the above matters.

 

17. As a result, the defendant respectfully requests that:

Pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) the claim is struck out and the Claimant be ordered to pay the defendants costs, to be summarily assessed.

Statement of Truth

I believe that the facts stated in this statement are true.

Full name Mr. Cab1ne

Signed________________________ (Defendant)

[cab1ne]

"JOKE"

 

[Bigdebtor]

CAB

 

Some info on here that could identify you? Exact date, time and place of hearing - and name of claimant?

 

BD

[cab1ne]

CAB

 

Some info on here that could identify you? Exact date, time and place of hearing - and name of claimant?

 

BD

 

its "ok"

[citizenB]

Cab1ne, what happended ?

[cab1ne]

Cab1ne, what happended ?

 

the court said it was a shambles. "they have been ordered to plead properly" and i have been allowed to ammend accordingly, plus the judge has moved a £400 quid small claims to fast track????????

 

cab

[citizenB]

the court said it was a shambles. "they have been ordered to plead properly" and i have been allowed to ammend accordingly, plus the judge has moved a £400 quid small claims to fast track????????

 

cab

 

What... you are joking.. why would he do that.. I would have thought mediation would have been the way to go !!

 

Ah well, you never know.. CL might just decided to throw in the towel. as I dont see they have a leg to stand on !!

[cab1ne]

What... you are joking.. why would he do that.. I would have thought mediation would have been the way to go !!

 

Ah well, you never know.. CL might just decided to throw in the towel. as I dont see they have a leg to stand on !!

 

i hope they dont, i love a good shindig. LOL

 

dave

[cab1ne]

UPDATE

 

Unbelievable "LOADS OF TIME"

 

 

 

dave

[cab1ne]

UPDATE

 

Unbelievable "LOADS OF TIME"

 

 

 

dave

 

Errrrrm!!!!!!! confusing

 

i always thought, as a defendant iam supposed to defend against a claim. Iam pretty sure the judge has got this ar$e about titt.

 

the court is ordering me to re amend my defence and then ordering the claimant to reply to my defence with a claim.

 

Even with me raising further allegations at the hearing and the judge making it perfectly obvious that he wanted it doing properly, he should of ordered them to re submit there claim first and then i submit my re amended defence.

 

dave