Advice please - M&S taking Court action

[Pumpkinhead]

Hi 42man. I've just been looking at a thread about the Embarrassed Defence related to Cagger Caanan.

 

I have a couple of questions:

 

1. I already have copies of the documents from an early request made under S77/78 of the CCA. Can I still use the Embarrassed defence as they haven't supplied the docs in reply to my CPR31 request?

 

2. What happens if they send the docs in reply to my CPR 31 and they arrive after I've submitted an Embarrassed Defence?

 

3. Should the relevant documents have been attached to the CCC form? I thought I saw this on a thread somewhere.

 

Your help much appreciated.

[Pumpkinhead]

Can anyone help with my query about embarrassed defence in this post?

 

I need to put something together urgently.

 

Many thanks.

[diddydicky]

Can anyone help with my query about embarrassed defence in this post?

 

I need to put something together urgently.

 

Many thanks.

 

if they havent responded to your cpr31.14 request or replied and told you that the documents they have already provided under s78 are the ones they intend to rely upon then you cant know that the documents they will eventually provide to the court will be the same

 

therefore submit the embarrassed defence

 

the CCA DN and statement of account should have been attached to the POC unless they were issued through northampton bulk centre

[Pumpkinhead]

Hi Diddydicky and thanks for your reply - that makes sense. I am almost paralysed with anxiety with all of this. I've been reading and reading threads but I'm struggling to keep it together. I've started to put an embarrassed defence together but don't really know what I'm saying.

 

Can you offer any examples of what I should be saying?

 

Yes the claim was issued thru Northampton - I've established now that they don't send the docs if it comes from there.

[supasnooper]

Some of pt2537 defences. Including other defences that pt has approved.

 

CL Finance Ltd. Recieved a court claim form**WON** Discontinued

 

Lloyds TSB Credit Card - Claim form received

 

Help! - AMEX No CCA and they've started court action. **DISCONTINUED**

 

 

Please do take your time to read and understand what is being said in the defences.

It is imperative that you do NOT copy and paste, then post off the defence thinking job done.

 

Your defence is specific to the Particulars of Claim that were sent to YOU; and should take into account any other legalities between YOU and the claimant.

 

Have a go at putting a defence together then post it up for opinions; it will also help you understand your case better as well.

[diddydicky]

. I, ********** of ************** make this statement as my defence to the claim brought by **************

 

2. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

3. No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information via CPR 31.14 dated xx/xx/xxxx sent by recorded delivery none has been forthcoming and as a result I cannot plead in defence to the claim

 

4. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

[Pumpkinhead]

Can you please take a look at my Embarrassed Defence and let me have your comments as to its suitability?

 

The POC on my Claim Form says "The Claimant's claim is for the balance outstanding under a revolving credit agreement number xxxxxx and dated xxxxx regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment of the arrears of instalments as required by the Statutory Default Notice served by the Claimant on xxxx. The Claimant formally demanded repayemnt of the outstanding balance due on xxxxx but the Defendant has failed to repay the amount due to the Claimant.

 

Blah, Blah, Blah

 

In the XXXXXXX County Court

Claim Number XXXXXXX

Between

 

Xxxxxxxxxxx Claimant

And

Xxxxxxxxxxxxx Defendant

 

 

Defence

 

1. I xxxxxx of xxxxxxxxxxxx am the Defendant in this action and make the following statement as my Defence to the claim made by xxxxxxxxxxx.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedures Rules even allowing for the constraints of the bulk issue system.

 

4. No documents supporting the Particulars of Claim have been offered and despite a request to the Claimant for further information via CPR31.14 dated xxxxx and sent by recorded delivery, none has been forthcoming. The content of such documents namely, the Credit Agreement, Default Notice, Final Demand and any other documents the Claimant will rely on in Court are vital to this case, especially given that I am Litigant in Person, and as a result I cannot plead in defence to the claim. The Defendant is therefore embarrassed.

 

The Importance of a Copy of the Credit Agreement

 

5. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts.

 

6. Firstly, the Agreement must contain certain prescribed terms under Regulations made by the Secretary of State under Section 60(1) CCA 1974. The Regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

7. 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) A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

 

b) A term stating the rate of any interest on the credit to be provided under the Agreement.

 

c) 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.

 

8. 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 said 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 Agreementand not in a separate document.

 

9. 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 S61 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."

 

10. 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.

 

11. Notwithstanding Point 5, the Agreement must be signed in the prescribed manner to comply with S61 (1) CCA 1974. If the Agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by Court Order.

 

12. I refer to the judgment of Lord Nicholls of Birkenhead in the case of House of Lords Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) which clearly sets out that without a Credit Agreement the Claimant’s case cannot succeed.

 

Therefore the Claimant must provide a copy of the Agreement compliant with the regulations as laid out in points 5to 12of this Defence to have any right of enforcement.

 

The Importance of a Copy of the Default Notice

 

13. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

14. I also 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).

 

15. The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but provide the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Conclusion

 

16. Without clarification of the Claimant’s claim and provision of the documents requested, the Defendant is extremely disadvantaged and the Claimant’s claim appears without merit. Therefore the Defendant respectfully requests to be permitted to submit a fully particularised Defence should the Claimant provide copies of the original documents he will rely upon.

 

17. Further to the above 15 paragraphs, the Defendant is unable to plead effectively or at all. The Defendant is embarrassed.

 

 

 

Please let me have your thoughts asap. Much appreciated.

[diddydicky]

fine

[Pumpkinhead]

I'm just filling in the defence claim on line and its asking if I want to counter claim. If I say Yes, it then wants a load of other info.

 

I see from my Patricia Pearl book that I will have to get permission to counterclaim later.

 

Should I say that I want to counter claim now based on my embarrassed defence?

 

Urgent replies appreciated:eek:

[diddydicky]

I'm just filling in the defence claim on line and its asking if I want to counter claim. If I say Yes, it then wants a load of other info.

 

I see from my Patricia Pearl book that I will have to get permission to counterclaim later.

 

Should I say that I want to counter claim now based on my embarrassed defence?

 

Urgent replies appreciated:eek:

 

what do you want to counterclaim for? there may be a fee payable

[Pumpkinhead]

I was thinking in relation to this bit of my claim:

 

The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but provide the Defendant with a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

 

Should I just ignore the counter claim bit for now?

[diddydicky]

well i am in the same situation and i have not bothered with the actual counterclaim itself- i simply use the fact that there would be an offset to the genuine arrears that would be due on the unlawful termination

[Pumpkinhead]

Diddydicky I've been reading your NW thread and I have similar situation to you with them but not received claim form yet. I've subbed to your thread and will add anything I come up with that might help you.

 

Thanks for your help today.

[diddydicky]

thanks

 

i've not sent the application to strike out yet-i'm going to write and give them a last opportunity to withdraw before i submit it

[supasnooper]

I can't see the Particulars of Claim for this claim anywhere.

Please can you post it up ( be vague with the amounts) as your defence must oppose the points raised.

The defence you propose may not be suitable.

[diddydicky]

I can't see the Particulars of Claim for this claim anywhere.

Please can you post it up ( be vague with the amounts) as your defence must oppose the points raised.

The defence you propose may not be suitable.

 

was that meant for me?

[supasnooper]

was that meant for me?

 

 

No it wasn't dd.

 

I think it would be good to see the Particulars of Claim for the claim so the OP does not submit an inappropriate defence

[mkb]

Snoops - the POC are in post 20.

[Pumpkinhead]

Hi Caggers

 

Here's a thought and a question for you all. What legally constitutes a creditor's signature on a CCA?

 

Does it have to bear a real "human" signature or can it just have the creditor company's initials - for example M&SFS?

 

If it only has this stamp and no proper signature does this make it invalid?

 

Thoughts appreciated:-)

[la2006]

Hi, I was also looking to an answers/thoughts to the above question too:

 

 

X can be a signature

Edited November 24, 2009 by la2006

[Pumpkinhead]

Thought you might like a quick update on this case.

 

The claim has now been stayed as M&SFS have failed to contact the court within the 28 days after receiving my defence. I sent them the CPR31.14 request but most of the docs they sent (such as DN and Termination Notice) were just blank templates.

 

I wonder if they are waiting to see the outcome of the test cases or could it be that the blank templates of the DN and TN would be insufficient in court?

 

Comments and thoughts welcome!

 

Also should I be claiming at this point for any costs?

Edited January 18, 2010 by Pumpkinhead

[Pumpkinhead]

Bump